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Grounds of Appeal

5. The appellant argued the following grounds of appeal which were amended without objection immediately prior to the hearing: (a) The learned Special Magistrate erred in rejecting the appellant’s account of how damage was occasioned to the door. Specifically, her Honour erred in fact by finding there was no evidence that the door shut onto the appellant’s knee; (b) The learned Special Magistrate erred by finding that the appellant’s evidence, if accepted, was consistent with his guilt; (d) The learned Special Magistrate erred in finding the element of recklessness proved beyond a reasonable doubt. Specifically, her Honour erred: (i) in fact by finding that the appellant adverted to the door being flimsy at the time damage was occasioned to the door; (ii) in fact by finding that the appellate occasioned the damage to the door at the same time as the victim was leaning with her back against the door from the other side such that the appellant must have felt that pressure; and (iii) in rejecting the reasonable possibility that the appellant simply did not advert to damaging the door. (e) The above errors, whether individually or taken as a whole, amount to material error.

6. Before dealing with these grounds, I shall set out the factual background of the matter. As the appellant did not take issue with the accuracy of the respondent’s summary set out in its written submissions, it is convenient to reproduce the facts set out in paragraphs [2]-[23] of the respondent’s written submissions. I will do this now.

7. The appellant and complainant were former intimate partners and share a child together. As of February 2025, they were separated, however, the appellant continued to live in a separate room within a townhouse that was leased by the complainant. On 16 February 2025, an incident occurred at the townhouse following an argument between the appellant and complainant about car parking arrangements. The prosecution case was that the appellant “either intentionally, or recklessly, kicked or kneed a hole in the complainant’s bedroom door”. It was accepted that the appellant caused the damage to the door. The key issue at the hearing was how exactly that damage was occasioned, and whether the prosecution could prove that the appellant intended to cause, or was reckless about causing, the damage.

8. The complainant gave evidence. Her family violence evidence-in-chief interview was played to the Court. The interview was recorded a short time after police arrived at the complainant’s residence on the night of the incident. The complainant told police that she and the appellant had an argument about the car spaces. The appellant had previously parked his car behind her car in the driveway, parking her car in. She had asked him not to do that so that she could leave quickly if she needed to.

9. That day, the complainant did not park the whole way up the driveway so that the appellant would be prevented from parking her car in. When the appellant returned home, he asked her to move her car forward so that he could also park in the driveway. At the time, their son was in the shower, and the complainant was sitting in her bedroom. She pretended she was on her phone to avoid speaking to the appellant. The complainant declined to move her car forward on the basis that there were other parking spots available and she wanted the exit to be clear in case she needed to leave. The complainant explained that she rented the townhouse and that there had been issues with the appellant paying his share of the rent.

10. The complainant closed the door to her bedroom because she did not want to have a conversation with the appellant. The appellant opened the door to her bedroom. She closed the door a second time and said, “I don’t want to talk to you”. The appellant opened the door again. She then closed the door a third time. She stood with her back to the door so that he could not open it. She told the officer, “And I think he kicked the door and when I said, ‘you kicked the door’ and he said like ‘oh, the door wasn’t as strong enough. I didn’t mean to kick it.’”

11. The complainant confirmed that door was not damaged immediately prior to the incident and she did not give the appellant consent to damage the door. The interviewing police officer recorded the complainant showing her the damage to the door on her body worn camera. The footage demonstrated that the door opens inwards, into the bedroom. When asked if the complainant saw how the appellant damaged the door, she responded “No, I was inside”. When asked how much force the appellant used on the door, the complainant responded that she had “no idea, I was inside trying to block the door.” After the door was damaged, she asked the appellant to leave and called the police.

12. In evidence-in-chief, the complainant said she just wanted the arguing to stop, which is why she went into her bedroom. She stated she closed the door twice and the appellant opened the door twice. After she closed the door a third time, the complainant said “I kind of used my body as a way to block him so he doesn’t open the door”. The complainant demonstrated how she was using her back against the door and clarified that she was leaning her back on the door, so that the front of her body was facing into the room. At this point in time, the door was closed.

13. When asked about the “kick” to the door, the complainant agreed that she did not see the appellant kick the door because she was inside the room. She further stated that she did not hear a bang or other noise, so she did not know the door was broken until she left the room to check on her son. She also did not feel anything against the door when her back was against it. In fact, she thought that the appellant had cooled off and walked away from the door. After she discovered the damage to the door, she found the appellant in the garage and asked him to leave. She asked the appellant “why did you do that for” and he responded that it was a mistake.

14. In cross-examination, the complainant confirmed that they do not wear shoes in the house and that the appellant was carrying a bag and his shoes when he entered the residence. The complainant was asked “you told police that [the appellant] said to you that he had kicked the door and didn’t mean to do it. Did he really say that to you?”. The complainant explained that “I asked him, ‘Why did you do that?’, and he said it was a mistake” and that he would fix the door. She then clarified that the appellant did not say “I kicked the door” to her. The complainant agreed that she could not say exactly how the door was damaged because she was inside the bedroom at the time. She agreed that she could not say whether or not the door was kicked because she did not see it.

15. The complainant disagreed that the door appeared to be “pretty flimsy”. She said that the residence was a “kind of old development” but that “It’s not that flimsy”. She agreed that the appellant has arthritis in his knees.

16. By consent, the prosecution tendered a number of statements from police who attended on the night of the incident, as well as photographs of the damage to the door taken by police. The prosecution also played and tendered the body worn camera recording of Office Guilfoyle when she first entered the house and spoke to the complainant. The recording depicts the complainant showing the officer the damage and stating, “he tried to punch it and get into my room”. When the officer clarified what happened, the complainant stated that “he kicked [the bedroom door]” and “then he said he accidentally did it”.

17. The prosecution also played and tendered the body worn camera footage of Officers Smith and Clarke, who spoke to the appellant outside the residence shortly after they attended the scene. In the footage from Officer Smith, the appellant recounted the disagreement about the parking situation. He then stated: Like, there’s never been anything physical or whatever. All I’m trying to do is I’m trying to have a chat with her, and I was trying to open the door and my knee hit, hit the door and there’s a hole on the door now. Like it’s not like me hitting her or anything. I’m just, all I’m trying to do is I’m trying to open the door and just having a chat with her.

18. The appellant continued to speak about the parking situation before stating “nothing actually has happened, all I’m trying to do is have a conversation and, and my knee just banged onto the door and the door was so weak that there’s a hole in it, that’s it”. He said the complainant said that he punched the door, and he referred to the fact that the hole was near the ground and queried whether the complainant was “making it up” and “trying to frame me for something which I haven’t even done”. Later, after the officer reiterated a caution given earlier, the appellant again stated: Yeah like, I haven’t done anything wrong, all I’m trying to do is just have a conversation with my missus, that’s it, and then just tried to open the door and by mistake, like, it just bumped into my knee. There is no other story to it, because that’s the story.

19. Officer Clarke arrived at the scene after Officer Smith and placed the appellant under arrest. In the footage from Officer Clarke, the appellant stated, “like honestly, I didn’t even… like what I’m being framed for, I didn’t even do it” and “it just happened by mistake, I was trying to open the door”.

20. The appellant gave evidence. He stated that apart from the incident on 16 February 2025, he had never been in trouble with police during the 18 years he had lived in Australia.

21. The appellant explained that when he arrived at the house, he had his bag, laundry and slippers in his hand. He entered through the living room and turned right into the hallway outside the master bedroom. He had a conversation with the complainant about moving the car. He said the complainant checked on their child in the shower and then went back into the bedroom. The appellant again asked her to move her car forward. He described the complainant sitting on the corner of the bed in her bedroom. He “continued the conversation”, requesting her to move her car and she “rejected my request”. He said that she closed the door to her bedroom. He then opened it again “to have a conversation”.

22. The appellant’s description of how the damage was occasioned to the door was as follows: When I tried to open the door I still had my stuff in my right hand, which is like all my laundry for the week and my work bag and my slippers and when I tried to open the door, the door banged onto my door [sic] when I tried to open it, because it opens inside towards the bedroom and it kind of banged onto my knee and made an impact …

23. He further stated that he did not “get much of an opportunity at that point of time to move back a little bit and with just a very small impact there was a hole because the impact it just kind of sinked in.” He explained that he had been trying to open the door with his non-dominant left hand, as his belongings were in his right hand. He said that he was not using much force to open the door, as he was opening it with his non-dominant hand. He said he “never made an impact with my knee into the door” and that he never kicked or punched the door.

24. The appellant described the complainant opening the door while he was still in the hallway looking at the hole, and that she got “even more upset” when she saw the damage. He said that he apologised to the complainant but maintained that the the apology was for the damage – not for having punched or kicked the door. He said the complainant said “I’m going to call the cops” so he walked away to where his stuff was in the study, before going to say hello to his son in the shower and then going back to the study. He said that he heard the complainant tell the police over the phone that he punched the door and kicked the door, and he said to her “I never punched – I never punched the door. I never kicked the door. You’re trying to frame me for something which I didn’t do”. He then went outside at which point, police arrived.

25. The appellant denied purposely pushing his knee into the door and stated that he “never went to the door looking at the condition of the door”, he just went for a conversation. He also stated that the damage on the door was about the height of his knee. The defendant was asked about his observations of the construction of the door and noted that given his knee damaged the door “just from that very small impact”, he thought it looked like it was only made from single ply on each side with a hollow centre. He also noted that he did not know that the complainant was putting her body on the other side of the door.

26. In cross-examination, the defendant could not remember how many times the complainant closed the bedroom door on him. He thought that she only closed it once and when he then tried to open it, “that’s when it went into the back of my knee”. He was asked how he felt about the complainant closing the door on him and stated “maybe she didn’t want to talk about it. But … this was a bit of a safety issue not just for my car, but for other people also on the curb”. He described it as “just a normal conversation happening. There was no aggression, no agitation about anything”. He denied being upset or annoyed.

27. The prosecutor showed the appellant a photograph of the damage and suggested that it was not the kind of damage that would have occurred by the door having been accidentally bumped into. The appellant responded: Like, I definitely didn’t accidentally bump into it. The door was the one which made an impact because there was – as she said, I didn’t even knew like she was on the other side putting a force from the other side of her body. Like that’s a full body’s impact coming through for a very small gap.

28. It was ultimately suggested to the appellant that he was angry with the complainant and so collided with the door with his leg, with force. The appellant denied this proposition and stated “I never used force either … It wasn’t me forcing my way into it.”

The Magistrate’s Decision

29. It was a short trial and her Honour delivered extemporaneous reasons on the day the evidence concluded.

30. No complaint is made about the legal directions which the magistrate gave herself. In particular, her Honour correctly directed herself as to the burden of proof in a case where a factfinder must assess two different versions of events, one of which must have been false. Her Honour quoted Mossop J in Gibbons v Perkins [2021] ACTSC 254 at [51]-[52] regarding this matter.

31. The magistrate found the complainant to be an honest and reliable witness.

32. The magistrate considered the evidence given under oath by the appellant and accurately summarised the effect of his evidence, being that he did not use much force to try to open the door as he was using his non-dominant left hand, denied being angry and annoyed with the complainant and that he had tried to open the door after she closed it and impacted the door with his knee. He did not collide with the door.

33. In reaching her conclusion on the facts, the magistrate gave careful consideration to the appellant’s evidence under oath and to the evidence contained on the body worn camera of Constable Clark. That evidence demonstrated what the accused said on the night and his behaviour and demeanour.

34. The magistrate then made important findings of fact, rejecting the appellant’s version of events and accepting the complainant’s evidence where it differed from the appellant’s evidence.

35. The magistrate found the appellant’s evidence to be confusing and unclear, in contrast with the complainant’s evidence which she found to be consistent and “had the ring of truth to it”.

36. The magistrate then found the appellant guilty, convicted him and fined him the sum of $500. She also made a reparation order in relation to the costs of fixing the damaged door.

Ground A

37. The appellant complains that the magistrate was wrong to reject the appellant’s account of how the damage was occasioned to the door. Specifically, that her Honour was wrong to find there was no evidence that the door shut onto the appellant’s knee.

38. The appellant referred to the following passages from the magistrate’s reasonings in submitting that her Honour’s incorrect factual findings as to the state of the evidence led her Honour into error in rejecting the appellant’s account.

39. At T54, in lines 5-9, her Honour stated: Defence submitted the court should find the defendant pushed through the door open ever so slightly and in this movement the door went into his knee and accidentally punctured the door. I reject this version of events as there is no evidence in support of it. The defendant gave no evidence that he managed to open the door slightly or otherwise. He only ever said he tried to open the door.

40. At T54, in line 26, her Honour stated: …the defence submission was that the door collided with the defendant’s knee after the door was opened and the complainant’s body weight pushed the door back closed. I reject that the door ever opened …

41. At T56, in line 20, her Honour stated: I have wholly rejected the defendant’s submission – not evidence – I have wholly rejected the defendant’s submission that he did in fact open the door, only slightly, and when it came back towards him, it collided with his knee and caused a hole. I reject that submission as there is no evidence is support of it.

42. The appellant contended that, contrary to the magistrate’s findings, there was evidence that the door did close onto the appellant’s knee and pointed to the evidence given by the appellant as follows.

43. At T22, in line 45, the appellant stated: … And then she closed the door. I opened the door again to have a conversation. When I tried to open the door I still had my stuff in my right hand, which is like all my laundry for the week and my work bag and my slippers and when I tried to open the door, the door banged on to my door when I tried to open it, because it opens inside towards the bedroom and it kind of banged onto my knee and made an impact and as mentioned earlier, I do have osteoarthritis and I’ve also got ankle injuries doing my kind of work earlier, with my previous work. Yes?--- And I didn’t get much of an opportunity at that point of time to move back a little bit and with just a very small impact there was a hole because of the impact it just kind of sinked in.

44. At T23, in line 21, the appellant stated “I never made an impact with my knee into the door. I never kicked the door. I never punched a hole in the door.”

45. The appellant’s counsel also referred to what the appellant told police on the evening of the incident, being that: I haven’t done anything wrong. All I’m trying to do is just have a conversation with my missus. And just tried to open the door and by mistake it just bumped into my knee, that’s it.

46. The magistrate observed that, based on the appellant’s evidence and the fact that the door opened inwards, in order for the damage to the door to have occurred as the appellant described it, the door would have needed to have been opened and he would have needed to move forward through the doorway such that his knee was on the bedroom side of the doorjamb. Only then, assuming the door was sufficiently opened and that the appellant’s knee was past the doorjamb, would it be possible for the complainant’s weight leaning against the door to push it backwards onto the appellant’s knee.

47. As to the possibility of these alternative circumstances, the magistrate observed correctly that the appellant only ever said he was trying to open the door, both in his conversation with the police on the night and in evidence at trial.

48. Given the magistrate’s acceptance of the complainant’s evidence that she was leaning against the door and that, whilst she was leaning against it, it never opened, it was open to her Honour to find that there was no evidence that the door shut on the appellant’s knee at the time when the damage was caused.

49. The magistrate was, therefore, entitled to reject the submission which had been put by the appellant’s counsel as there was, in fact, no evidence from the appellant to support that submission.

50. To my mind, the only relevance of the mechanism by which the door was damaged arose out of the evidence given by the appellant.

51. On any view, there was no dispute that the door was damaged during the moments when the appellant tried to open the door. Further, as a matter of causation, there was no doubt that the appellant’s knee came into contact with the door and caused the hole in the door.

52. If the appellant’s account was believed, or if there was a reasonable possibility that his account was true, then the appellant’s contact with the door was accidental. In other words, if the door was actually opened or partially opened at the time that would have added credibility to the appellant’s assertion that the door collided with his knee as it came back rather than him applying any force to the door with his knee.

53. The magistrate gave careful consideration to the appellant’s evidence and indeed went to some lengths during submissions to clarify with the appellant’s counsel what the actual evidence of the appellant was. As it happens, her Honour’s memory of the appellant’s evidence coincided exactly with the transcript (which was not available to her Honour at the time of argument). It was therefore open to her Honour to reject the appellant’s account, even in light of her acceptance of some of his evidence, and find that it was the appellant’s knee which caused the damage to the door.

54. Having rejected the appellant’s account, it was a short step to conclude that such a significant indentation in the door would have required a degree of force greater than the appellant had conceded.

55. This ground of appeal must be dismissed

Ground B

56. This is a complaint that the magistrate was wrong to find that the appellant’s evidence was consistent with his guilt. This particular complaint arises out of the magistrate’s comment at T57 as follows: But even accepting the evidence he gave, this does not mean he is acquitted. His version is consistent with proving beyond reasonable doubt that he did commit the offence of property damage and he is found guilty.

57. When the magistrate’s comment is read in context with her reasons which proceeded, it can be seen that this complaint is misconceived.

58. At T56, her Honour stated: Defence admitted that even if the evidence relied upon by the defendant us bit positively believed, I must not convict if that evidence gives rise to a reasonable doubt. So if I find difficulty in accepting the defendant’s evidence, but think it might be true, then I must acquit. When defence counsel was asked what part of the defendant’s evidence might be true, defence counsel could not assist the Court. The Court does not understand this submission. I have wholly rejected the defendant's submission - not evidence - I have wholly rejected the defendant's submission that he did in fact open the door, only slightly, and when it came back towards him, it collided with his knee and caused a hole. I reject that submission as there is no evidence in support of it. The defendant's evidence which I do accept is that he tried to open the door and in doing so caused damage to the door. I reject that it was an accidental collision. He did not give evidence that it was an accidental collision in any event. I find he had to move his leg towards the door forcefully enough to penetrate a hole into the door. I accept his evidence that he did not punch or kick the door. He did not give any evidence about thinking about the consequences of trying to open the door. There was no evidence about how his knee moved into the door. It is entirely unclear what evidence defence thinks the Court should find might be true that would lead to an acquittal, noting that the defendant has absolutely no onus or burden of proof at all; it is just unclear what evidence might be true that would lead to an acquittal in accordance with a Liberato direction. The defendant's evidence established it was his knee that caused the hole. The hole was caused when the defendant was trying to open the complainant's bedroom door against her wishes to continue speaking to her against her wishes. The defendant's evidence says nothing about the door opening or remaining shut. The defendant's evidence says nothing about how his knee collided with the door. He certainly did not assert someone pushed him or he fell over, or some other involuntary action of his body occurred.

59. In circumstances where the magistrate had correctly identified the absence of critical evidence from the appellant as to the exact mechanism by which his knee came into contact with the door, it was nevertheless correct to say, as she did, that the appellant’s evidence so far as it went was consistent with his guilt.

60. It was a shorthand way of saying that the admission by the appellant, so far as it went that it was actually his knee which caused the damage to the door, was not inconsistent with the complainant’s version, being that the damage to the door occurred whilst she was leaning against it and the door closed.

61. This ground of appeal is dismissed

Ground D

62. This ground of appeal raises three complaints in respect of the factual findings made by the magistrate. First, that the magistrate wrongly relied on the appellant’s comment that the door was flimsy, when that comment was made after the event, to reach the conclusion that he was reckless.

63. Second, by finding that the appellant caused the damage to the door at the same time as the complainant was leaning against the door.

64. Third, by finding that the appellant recklessly damaged the door when there remained a reasonable possibility that he did not advert to the possibility that the door could be damaged by his actions.

65. As in respect of the complaint made in ground two, the complaints made under this ground need to be evaluated in the light of the magistrate’s factual findings and all of the evidence which supported those findings.

66. The factual findings which the magistrate made that were relevant to the conclusion that the appellant acted recklessly were: (a) the appellant realised the door was a flimsy construction; (b) the appellant was aware that the complainant did not want him to open her door; (c) the complainant closed the door at least once and the appellant opened the door, after which the complainant closed the door again; (d) the complainant told the appellant she did not want to speak with him further; (e) the appellant was angry and continued to argue with the complainant, insisting on opening the door; (f) when the complainant used his left-hand to try to open the door a second time, he would have felt the pressure on the door which the complainant was applying with her body, meaning the door was not easily opening as it had moments before; and (g) despite the door not easily moving, the appellant moved his knee into the door with enough pressure to puncture the door. (h) the appellant gave no evidence that he managed open the door slightly or otherwise; (i) the damage to the door occurred at the same time as the complainant was using her back to push against the door; and (j) the door remained closed while it was damaged. The damage was caused by the appellant’s knee.

67. The magistrate relied on the appellant’s comments immediately after the incident in concluding that the door was a flimsy construction. The only evidence which touched on both parties’ knowledge of the state of construction of the door lay in the fact that the complainant had lived there for some time and had allowed the appellant to stay there for the time being.

68. To that extent, the magistrate’s reliance on the appellant’s comments that the door was made of flimsy material after the event that were made in error. Nevertheless, given the other evidence touching upon the appellant’s state of mind upon which the magistrate also relied, including the finding as to how in fact the door was damaged, I consider it was open to her Honour to conclude that even though she could not be satisfied beyond reasonable doubt that the appellant intentionally cause the damage, he did realise that some damage would result from his application of force to the door.

69. There was a significant indentation in the door to the extent that the exterior of the door had been punctured. That alone indicates that substantial force must have been applied to the door.

70. Added to that, the appellant was angry and aggressive. That much is also evidenced by the body worn camera of Constable Smith, wherein it can be seen that the appellant was still angry and frustrated at the point at which he was speaking with police. The appellant went on at length to the police officer about why the complainant had been so unreasonable.

71. The appellant persisted in trying to open the door even after the door had been closed at least once if not twice. The fact that, immediately after the damage was caused, everything went quiet speaks to the appellant having desisted immediately after the damage was done. Contrary to the appellant’s evidence that he remained just outside the door and the conversation with the complainant about the damage occurred there, the magistrate accepted the complainant’s evidence that she had to find him in the garage. That evidence suggests that the appellant desisted from using force as soon as the damage was done and was fully aware of how and why the damage was caused. Given the fact that he had supplied the substantial force which was needed to make such a significant indentation, the appellant must have adverted to the possibility that at least some damage would be done to the door by the force of him forcing his knee into it.

72. For these reasons as there was other evidence, sufficient to establish recklessness beyond reasonable doubt I do not consider that the error made by the magistrate to be material in that it might reasonably have affected the magistrate’s ultimate finding of guilt.

73. If I am wrong about that then having conducted my own independent review of the evidence I would nevertheless have concluded that it is appropriate to dismiss the appeal.

Conclusion

74. For these reasons, the appellant has failed to establish any material error in the magistrate’s decision. The appeal should be dismissed and the finding of guilt confirmed.

Orders

75. The orders of the Court are: (1) The appeal is dismissed. (2) A finding of guilt is confirmed.

I certify that the preceding seventy-five [75] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Kelly. Associate: Date: 29 April 2026