TF v R

District Court of NSW|2024-11-06

Contents Reasons for decision on appeal from the Local Court The nature of an appeal Counsel on appeal seeks to revisit forensic decisions made by Senior Counsel at the hearing before the Local Court General Directions Inferences Onus and burden of proof Murray Direction KRM Markuleski Essential elements of the charges under consideration Appellant gave evidence - directions including "Liberato" Section 165 warning - WE Complaint direction Character Motive to Lie Tendency Evidence Review of the Evidence Consideration Orders

Reasons for decision on appeal from the Local Court The court reminds all concerned that the relevant legislation provides that there must be no publication of the name of the appellant, or the complainant or the child WE or anything that might identify them.

The appellant was found guilty of eight different offences that can be described generally as domestic violence offences. As is often the case the sequence numbers are in a different order to the chronological order of the alleged offences. I will deal with the matters, as best I can, in chronological order of the alleged offences. All matters are contained within H93267768. Other matters before the learned Magistrate were withdrawn and in respect of some others the appellant was acquitted. In respect of sequence 4, which is a charge of Damage to Property, the appellant entered a plea of guilty and that is not part of the material that I need to consider. Therefore this decision is limited to the seven sequences in respect of which convictions were recorded. However, it will be necessary to consider the matters where acquittals were entered because of the issue or submission in relation to inconsistent verdicts.

The nature of an appeal

Initially, I will go to some matters of general principle.
In Charara v The Queen (2006) 164 A Crim R 39 Mason P (Kirby J and Hoeben J (as his Honour then was) agreeing) said at [15]-[18]: "This 'all grounds' appeal was often referred to as being by way of rehearing (see eg Sweeney v Fitzhardinge (1906) 4 CLR 716 at 728, 730), but always in a context explaining that the District Court (as successor to the Quarter Sessions) was obliged to hear the matter de novo. In R v Longshaw (1990) 20 NSWLR 554, Gleeson CJ (at 561) described Sweeney as holding that 'the appeal was by way of re-hearing, in the widest sense of the term, that is to say a hearing de novo'. [16] Appeals to the District Court are no longer of this nature. Recently, in Gianoutsas v Glykis [2006] NSWCCA 137, this Court held that the clear language of s18 precludes the District Court from treating an appeal of this nature as a hearing de novo (see the reasoning of the Chief Judge at Common Law at [24]-[31]). [17] The appeal is to be by way of rehearing on the Local Court transcripts (s18(1)), obviously supplemented by reference to any exhibits tendered in the Local Court. Fresh evidence may be given by leave, subject to the District Court being satisfied that it is in the interests of justice that this should occur (s18(2). [18] The District Court is then required to apply the principles governing appeals from a judge sitting without a jury. The Judge is to form his or her own judgment of the facts so far as able to do so, ie recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the lower court (Bell v Stewart (1920) 28 CLR 419 at 424-5, Paterson v Paterson (1953) 89 CLR 212, Fox v Percy (2003) 214 CLR 118)."
At paragraph [3] of her written submissions the Crown Prosecutor refers to the decision of Filip Black v R [2017] NSWDC 326, a decision of my colleague his Honour Judge Scotting. With unfeigned respect to his Honour I gratefully adopt what he said at [10]-[16], namely: "Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31]; [11] The principles governing appeals from judges sitting without a jury apply in that the appellate judge is to form his or her own judgement of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record: Charara v R [2006] NSWCCA 244 at [17]-[22]. [12] Whilst the magistrate's reasons are not part of the certified transcripts referred to in section 18(1), recourse may be had to them since the appellate function could not properly take place without reference to them: Charara [23]-[24]. [13] The Court is obliged to give the judgement which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23]. [14] The powers of the District Court are exercisable where the appellant demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand: Dyason v Butterworth [2015] NSWCA 52 at [28]." [15] The issue of whether or not error is strictly required before the District Court can intervene was considered but not decided in AG v Director of Public Prosecutions [2015] NSWCA 218. I have proceeded on the basis that I am bound by the law as it is stated in Dyason and other subsequent decisions including Bandana v Director of Public Prosecutions [2016] NSWCA 140 at [10] and Englebrecht v Director of Public Prosecutions [2016] NSWCA 290 at [91].. [16] The term "error" has no precise meaning. It refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgment of the trial judge will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of "error" in the ordinary meaning of that term: AG at [34] per Basten JA."

Counsel on appeal seeks to revisit forensic decisions made by Senior Counsel at the hearing before the Local Court

The appellant was represented in the Local Court by Mr Mark Dennis SC, who is known to this court as an extremely able and extremely experienced senior counsel in the criminal law. It is regrettable for a number of reasons that counsel appearing for the appellant sought to revisit matters, which on any fair reading of the material were forensic decisions properly and appropriately made by experienced and able senior counsel. These issues added an unnecessary level of complication to this matter.
Those matters are essentially (1) the admissibility of tendency evidence and (2) the admissibility of a recorded interview with the child WE. WE is a child of the relationship between the complainant and the appellant. He was 6 years of age at the time of the interview.
Initially I go to the issue of the tendency evidence. Relevantly, the Tendency Notice pleaded that the allegations of violence were cross-admissible in respect of all other matters of violence and further the prosecution relied on "in respect of each complaint the prosecution will rely on evidence of all physical conduct, verbal assaults and threats engaged in by the appellant with the complainant". Ms O'Rourke sets out the provisions of the Tendency Notice at paragraph [17] of her written submissions, namely: "The tendency to have a particular state of mind, namely, to intimidate the complainant arising from the following subsections identified in the Notice: 2(a) The appellant's tendency to have a state of mind, namely anger towards the complainant; 2(b) The appellant's tendency to have a state of mind, namely intent to intimidate the complainant; 2(c) The appellant's tendency to act in a particular way, namely to act violently when angry; 2(e) The appellant's tendency to act in a particular way, namely to physically assault the complainant; 2(g) The appellant's tendency to act in a particular way, namely to sexually touch the complainant without her consent."
At the hearing before the learned Magistrate the following exchange occurred at p 5 (17/08/23) line 25ff: Prosecutor: Your Honour I should just indicate as well a tendency notice has been served on the defence. I can hand up a copy of that as an aid to your Honour. Dennis: There's no objection to it your Honour. Prosecutor: There is evidence in the proceedings that is pure tendency evidence that were uncharged acts your Honour, they're on page - the notice relates to those on page 7 through to 8, otherwise all the other acts sought to be relied upon relate to the charges and they're sought to be cross-admissible. Her Honour: And that evidence isn't objected to? Dennis: Correct.
To my mind the only reasonable interpretation that can be placed on that exchange is that there was no objection to the tendency notice or to the prosecution leading the proposed tendency evidence. Further, to my mind that exchange clearly shows that Mr Dennis SC made a forensic decision not to make an objection.
Ms O'Rourke, who now appears for the appellant maintains in her written submissions that the tendency evidence is inadmissible on a number of bases. One of the principal arguments advanced in this regard is that lack of specificity of the tendency evidence. In that regard counsel who now appears is seeking to run a different case than that by Mr Dennis SC at the hearing before the Magistrate. As I understand the oral submissions advanced on behalf of the appellant, it was put that I could reconsider the admissibility of the tendency notice and the tendency evidence if I concluded that, rather than a forensic decision by senior counsel before the Magistrate, it was a matter of inadvertence.
It seems to me that the resolution of this issue requires no more than a reading of the exchange as set out above. Clearly there was a decision made, and equally clearly, there is nothing within that exchange that leads to any suggestion, let alone conclusion, that inadvertence had anything to do with the decision. In these circumstances I do not propose to reconsider the admissibility of the tendency notice and/or the tendency evidence. Nor do I consider it necessary to give reasons for this beyond what I have said.
The next issue that Ms O'Rourke seeks to revisit is the admissibility of the records of interview given by WE, the child of the complainant and the appellant. Electronic recordings of those interviews were marked as MFI 3, MFI 4 and MFI 5 before the learned Magistrate. It is agreed between the parties that I do not view those recordings but rather rely on the transcripts.
Ms O'Rourke contends that the recordings are inadmissible because of concerns as to the propriety of the conduct of the interviews with the child in that, as I understand the submission, the child did not understand correctly the concept of truth.
I will return to that issue shortly, but on a second reading of the relevant transcript in the preparation of these reasons another but possibly more fundamental issue with the evidence of WE occurs to me. At p 32 line 30ff of 17 August 2023 the following appears: Prosecutor: …(beginning line 21), Your Honour will see he's six years old and I have spoken to him - about a month ago I had a conference with him and I've spoken to him briefly this morning. He's not terribly - he's not wanting to do this your Honour so if he presents with that at any stage that's the context of that and that's understandable. (the emphasis is mine)
The learned Magistrate then made the inquiries of the child in accordance with s 13(5) of the Evidence Act, 1995 and following a suggestion by Mr Dennis SC made further inquiries. The interviews were then played and the child cross-examined.
The issue that I raised (via communication with my Associate) with the parties after the oral argument related to s 18 of the Evidence Act. It seems that the learned Magistrate did not turn her mind to this, nor for that matter did either counsel in oral argument on the appeal. Further, it seems that neither party at the hearing before the Magistrate contemplated s 18 of the Evidence Act, which relevantly provides: (1) This section applies only in a criminal proceeding. (2) A person who, when required to give evidence, is the spouse, de facto partner, parent or child of a defendant may object to being required - (a) to give evidence, or (b) to give evidence of a communication between the person and the defendant, as a witness for the prosecution. (3) The objection is to be made before the person gives the evidence or as soon as practicable after the person becomes aware of the right so to object, whichever is the later. (4) If it appears to the court that a person may have a right to make an objection under this section, the court is to satisfy itself that the person is aware of the effect of this section as it may apply to the person. (5) If there is a jury, the court is to hear and determine any objection under this section in the absence of the jury. (6) A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that - (a) there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence, and (b) the nature and extent of that harm outweighs the desirability of having the evidence given. (7) Without limiting the matters that may be taken into account by the court for the purposes of subsection (6), it must take into account the following - (a) the nature and gravity of the offence for which the defendant is being prosecuted, (b) the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it, (c) whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor, (d) the nature of the relationship between the defendant and the person, (e) whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant. (8) If an objection under this section has been determined, the prosecutor may not comment on - (a) the objection, or (b) the decision of the court in relation to the objection, or (c) the failure of the person to give evidence.
Six out of the seven charges of which the appellant was convicted related to allegations of domestic violence. Section 279 of the Criminal Procedure Act, 1986 is therefore relevant. That section provides: (1) In this section - (a) a reference to a member of the accused person's family means the spouse or de facto partner of the accused person or a parent (within the meaning of the Evidence Act 1995) or child (within the meaning of that Act) of the accused person, and Note - "De facto partner" is defined in section 21C of the Interpretation Act 1987. (b) a reference to a domestic violence offence is a reference to a domestic violence offence within the meaning of the Crimes (Domestic and Personal Violence) Act 2007, and (c) a reference to a domestic violence offence committed on a member of an accused person's family includes a reference to an offence of contravening a prohibition or restriction specified in an apprehended violence order that was made against the accused person and in respect of which a member of the accused person's family was the protected person, and (d) a reference to a child assault offence is a reference to - (i) a prescribed sexual offence committed on a child under the age of 18 years, or (ii) an offence under, or mentioned in, section 24, 27, 28, 29, 30, 33, 33A, 35, 39, 41, 42, 43, 44, 46, 47, 48, 49, 58, 59 or 61 of the Crimes Act 1900 committed on a child under the age of 18 years, or (iii) an offence that, at the time it was committed, was a child assault offence for the purposes of this section or section 407AA of the Crimes Act 1900, or (iv) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in subparagraph (i), (ii) or (iii), and (e) a reference to a child assault offence committed on a child includes a reference to an offence of contravening a prohibition or restriction specified in an apprehended violence order that was made against the accused person and in respect of which that child was the protected person. (2) A member of an accused person's family in proceedings in any court - (a) for a domestic violence offence (other than an offence arising from a negligent act or omission) committed on a member of the accused person's family, or (b) for a child assault offence (other than an offence arising from a negligent act or omission) committed on - (i) a child living in the household of the accused person, or (ii) a child who, although not living in the household of the accused person, is a child (within the meaning of the Evidence Act 1995) of the accused person, is compellable to give evidence in the proceedings, either for the prosecution or for the defence, without the consent of the accused person. (2A) This section does not make a member of an accused person's family (other than the accused person's spouse) compellable to give evidence in proceedings for a domestic violence offence committed on a member of the accused person's family if the accused person is under the age of 18 years. (3) A member of an accused person's family is not compellable to give evidence for the prosecution as referred to in subsection (2) if the family member has applied to, and been excused by, the court. (4) A court may excuse a member of an accused person's family from giving evidence for the prosecution as referred to in subsection (2) if satisfied - (a) that the application to be excused is made by that family member freely and independently of threat or any other improper influence by any person, and (b) that it is relatively unimportant to the case to establish the facts in relation to which it appears that the family member is to be asked to give evidence, or there is other evidence available to establish those facts, and (c) that the offence with which the accused person is charged is of a minor nature. (5) When excusing a member of an accused person's family from giving evidence under subsection (4), the court - (a) must state the reasons for doing so, and (b) must cause those reasons to be recorded in writing in a form prescribed by the regulations. (6) An application under this section by a member of an accused person's family to be excused from giving evidence is to be made and determined in the absence of the jury (if any) and the accused person, but in the presence of the accused person's Australian legal practitioner. (7) A court may conduct the hearing of an application under this section in any manner it thinks fit, and is not bound to observe rules of law governing the admission of evidence but may obtain information on any matter in any manner it thinks fit. (8) The fact that a member of an accused person's family in proceedings for an offence has applied to be excused, or has been excused, from giving evidence in the proceedings is not to be made the subject of any comment by the court or by any party in the proceedings.
It occurs to me that given the nature of these proceedings and what has occurred, or more correctly what has not occurred so far as s 18 of the Evidence Act and WE is concerned, I am required to essentially to use the vernacular and as used by Hamill J in Sahartor v R [2020] NSWCCA 36 at [30] "unscramble eggs". Further, as Hamill J observed to do so is very difficult if not impossible.
It is plain enough the child WE never had his rights pursuant to s 18 of the Evidence Act made clear to him, or for that matter ever explained at all. What the outcome would have been had the inquiry been made is simply a moot point as the evidence was given. However, noting the age of the child at the time (i.e. 6 years of age) together with the acrimony that is obvious between the complainant and the appellant and that the appellant has not spent time with (or, to use the older expression, had access to the child) for my part it is likely that I would have found that WE giving evidence would have caused harm to the relationship between him and appellant. However, to make any finding at this point of proceedings in respect of s 18(6)(b) would essentially be speculative. It is regrettable that this issue was not dealt with in the Local Court.
In her supplementary submissions of 11 November 2024 Ms O'Rourke puts that what the prosecutor put to the learned Magistrate about WE, "he's not wanting to do this", should have raised in her Honour's mind the provisions of s 18 of the Evidence Act. That submission is clearly correct. Further there is some force in counsel's submission (para 6) that some harm to the relationship between WE and his father may be anticipated.
Section 19 of the Evidence Act provides: Section 18 does not apply - (a) in proceedings for an offence against or referred to in the following provisions of the Children and Young Persons (Care and Protection) Act 1998 - (i), (ii) (Repealed) (iii) section 227 (Child and young person abuse), (iv) section 228 (Neglect of children and young persons), or (b) if the person could be compelled to give evidence in proceedings under section 279 (Compellability of family members to give evidence in certain proceedings) of the Criminal Procedure Act 1986, or (c) in proceedings for an offence against or referred to in the following provisions of the Children's Guardian Act 2019 - (i) section 93, (ii) section 107. Note - This section differs from section 19 of the Commonwealth Act.
So far as the considerations within s 279(4)(a)-(c) are concerned, on the material available there is simply no basis on which a finding could be made that the appellant had in any way influenced the child WE given that there had been no contact of any sort between them. However, in respect of sub-paragraph (b) while there was other evidence the child WE was an eye witness to a number of incidents, including with the dog "Salt", none of the offences with which the appellant was charged could be said to be minor.
I am satisfied that on the authority of R v A1 (No. 2) [2019] NSWSC 663 at [82]-[83] that different areas of evidence are severable for the purposes of a ruling on an objection taken pursuant to s 18 of the Evidence Act.
I have considered all of the authorities to which I have been referred by counsel, i.e. R v A1(No. 2) [2019] NSWSC 66, LS v Director of Public Prosecutions & Anor [2011] NSWSC 1016 and Mulvihill v R [2016] NSWCCA 259. However, in the circumstances I am met with it seems to me the solution is to be found in the wording of s 18(2), s 18(3) and s 18(4) taken with s 279 of the Criminal Procedure Act. The objection is to be taken before evidence is given. WE should have been informed of his rights.
However, given that WE was compellable in respect of the charges of domestic violence there is considerable (and on this issue decisive) force in the Crown's submission that once the child gave evidence in respect of the domestic violence charges no further harm could be done to the relationship between WE and his father by WE giving evidence in the charge relating to cruelty to an animal.
Counsel for the appellant seek a warning pursuant to s 165 of the Evidence Act in respect of the child WE. If the issue was solely the age of the child, I would be very hesitant indeed to give myself that direction. However, given the obvious angst between the complainant and the appellant and noting the reluctance of WE to give evidence I will give that warning. As the tribunal of fact, I propose to be very circumspect about WE's evidence.
In referring to "angst" I am not referring to the evidence by the complainant of the domestic violence. However, there were a number of occasions of somewhat gratuitous comments - for e.g. at p 17:05 when asked, "He likes hunting lawfully, doesn't he?" she replied, "I've seen some questionable things but yes, he likes killing, yes".
I now return to the submission made on behalf of the appellant that the evidence of the interviews and therefore the evidence of WE should be rejected because of an impropriety. As the Crown Prosecutor correctly submits in her written submissions, there was no objection taken by Senior Counsel in the Local Court to the interviews although there were specific objections taken to parts of the interviews. Those specific objections and submissions in relation to them are set out at pp 44 to 47 inclusive of the transcript of 17 August 2023. The transcript reflects that no party made any submissions concerning s 165 of the Evidence Act and the evidence of WE.
I note the complainant, who is the mother of the child, was present at the first interview. The issue of possible contamination is something that goes to weight. In MFI 3 (the first interview) the following appears: Senior Constable Gibson: Yep very good. So we also got your mum here with us and we have Anna as well another police officer. So today whilst we are talking it's important to only say the truth. WE: I did S/C Gibson: Yeah, I believe you, the truth is what really happened. So do you know what telling a lie means? WE: Yes S/C Gibson: And can you give me an example of a lie? WE: Tricking somebody S/C Gibson: And do you know what telling the truth means? WE: Being good and letting somebody know S/C Gibson: Do you know what happens if somebody is found to be telling a lie? WE: They get into trouble S/C Gibson: Yeah, that's true, good job. So can we make an agreement to only tell the truth today? WE: Okay
It is obvious from the extract above that it was Senior Constable Gibson who explained to WE the concept of truth when he said to WE, "Yeah, I believe you, the truth is what really happened…" Of greater concern, however, is the response of WE regarding the concept of truth in MFI 4, the second interview. The following appears at the first page of the transcript of MFI 4: S/C Gibson: So today whilst we are talking it's important to only say the truth. WE: Okay, I think I always say the truth. S/C Gibson: Yes it means when you are faking something when someone want to hear it. S/C Gibson: And do you know what happens when you tell a lie? WE: you get into trouble … S/C Gibson: And do you know what telling the truth means? WE: It means telling something somebody wants to hear.
The emphasis on the last question and answer are mine, however, the issue so far as WE's understanding of the concept of the truth should be obvious. This causes me some very real disquiet about the reliability of WE's evidence. The answers to the same types of questions in MFI 5 add to that disquiet. MFI 5 appears to have been conducted, unlike MFI 3 and 4, by a trained JIRT officer who was accustomed to interview young children. However, the following appears at Q/A 15ff: Q: What's a lie? A: It's when you don't tell somebody something. Q: Yeah and what's the truth? A: It's when you do tell somebody something
It was going to be necessary at some point in these reasons to set out the above extracts from MFIs 3, 4 and 5. I understood Ms O'Rourke to put in oral submissions that I would only go to consider the issue of impropriety and undertake the balancing exercise required by s 138 of the Evidence Act if I was persuaded that there was inadvertence on the part of Senior Counsel in the Local Court.
I note that Mr Dennis SC at p 4 line 40ff on 17/08/23 said: "And to save your Honour some angst, the child gives three interviews. In the third interview there's arguably a question about his capacity, but looking at the three interviews all together I'm not pressing the issue of the child's capacity to give evidence".
Given this and a fair reading of that part of the transcript (pp 44-47 17/08/23) where Mr Dennis SC deals with specific objections as to parts of the interviews between police and WE, I firmly reject the submission that there may have been inadvertence on by Mr Dennis SC as to the issue now sought to be raised by different counsel on the appeal.
Further, although essentially the appeal I am considering is by way of rehearing, I note the line of authority to the effect that it is essential to the maintenance of the adversarial system that qualifications on the cardinal principle that parties in a criminal trial are bound by the conduct of counsel are carefully controlled. See for e.g. Nudd v The Queen (2006) 80 ALJR 614, Davis v R [2017] NSWCCA 257 at [59] and Roach v R [2019] NSWCCA 160 at [154]-[157].
While I reject the primary submission advanced by Ms O'Rourke that I reconsider the question of the admissibility of the evidence of WE, as I set out above the answers by WE to the questions about the concept of the truth cause me to have considerable disquiet or misgivings about the reliability of the evidence. The presence of the complainant at the first interview likewise adds to that disquiet and those misgivings. There is another aspect of the issue of the reliability of WE.
I have dealt with the extracts from the interview set out above in these reasons to deal with the submissions by counsel for the appellant. This is as a convenient point as any within these reasons to deal with another issue relating to WE's reliability. I note in particular the questions and answers 179ff of MFI 5, the third interview. The following appears: Q. 179: …Does mummy talk to you about dad? A. Mmmm sometimes Q: Sometimes. What does she talk, what does she talk to you about dad about? A: Um…I don't know Q: You don't --- A: Yeah just all the mean stuff he did. Q: All the mean stuff he did. Does she tell you that does she? A: NO AUDIBLE REPLY Q: How does that make you feel, humm? A: Um, it made me feel bad Q: Yeah what do you think about dad? A: Think about all the bad things he did to my mum Q: Yeah, did you see any of those bad things: A: Um Q: Did you ever see daddy do any bad things to mum? A: Mmm, no.
Although I am not prepared to reconsider the admissibility of the records of interview, as previously indicated when dealing with another issue, given the issues to which I have referred as the tribunal of fact I am going to be particularly circumspect about WE's evidence.

General Directions

In relation to accepting the evidence of witnesses, I am not obliged to accept the whole of the evidence of any one witness. I may, if I think fit, accept part and reject part of the same witness' evidence. The fact that I do not accept a portion of the evidence of a witness does not mean that I must necessarily reject the whole of the witness' evidence. It does not mean that I should not accept the remainder of that evidence if I think it is worthy of acceptance. This being a Judge Alone trial, it will be necessary for me to give reasons as to why I accept or reject the whole or part of the evidence of any one particular witness.
As the tribunal of fact I am entitled to use life experiences, training and experience as a lawyer and as a judicial officer. I can make a value judgment. However, I cannot use that experience to make findings of fact or to draw inferences unless that personal experience satisfies the test relating to common knowledge in s 144 of the Evidence Act, 1995.
I have heard addresses from counsel for the Crown and counsel for the accused. I will consider those submissions that have been made in their addresses and give to the submissions such weight as I think fit. In no sense are those submissions evidence in the case.

Inferences

This is a matter where I am asked to draw inferences. I remind myself and direct myself in terms of what juries are normally directed on the drawing of inferences. Inferences are conclusions of fact rationally drawn from a combination of proven facts. If A, B and C are established as facts then one might rationally conclude that D is also a fact, even though there might be no direct evidence that D is indeed a fact. Inferences may be valid or invalid, justified or unjustified, correct or incorrect.
I remind myself of the illustration routinely given to juries from the Trials Bench Book of the telephone call to a friend. In a criminal trial, as the tribunal of fact, I must be satisfied of the guilt of the accused beyond reasonable doubt. Amongst other things, that means that I should be extremely careful about drawing any inference. I must examine any possible inference to ensure that it is a justifiable inference.
In the context of a criminal hearing, where proof is required beyond reasonable doubt, as the tribunal of fact I must not draw any inference from the direct evidence unless it is the only rational inference in the circumstances.
The accused pleaded not guilty before the Local Court and maintained that plea of not guilty in the District Court by way of a conviction appeal. The following directions as to the onus and burden of proof apply equally to all charges that I am considering.

Onus and burden of proof

I go to what is undoubtedly the most important direction of any criminal trial or hearing; that is the direction relating to the onus and burden of proof. Before I could return a verdict of guilty in respect of any one or more of the charges that I am considering, the Crown would need to prove the guilt of the accused and prove that guilt to the criminal standard of beyond reasonable doubt. The words "beyond reasonable doubt" are ordinary English words and they are given their ordinary English meaning. The collective legal wisdom developed over the centuries is that further elaboration by trial judges on the meaning of the expression "beyond reasonable doubt" is neither necessary nor desirable. However, as part of the direction on the onus and burden of proof I direct myself that suspicion, even the gravest of suspicion, cannot amount to proof beyond reasonable doubt.
If, at the end of my deliberations, having taken into consideration the evidence for the Crown and evidence led in the accused's case in respect of any matter which the Crown must establish to make out its case, and after also taking into consideration the submissions made to me by the Crown and counsel for the accused in their address, I am not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt then it is my duty, as I have said, to bring in a verdict of "not guilty", because the Crown will have failed to do what the law requires it to do.
I remind myself that it is vitally important that I clearly understand that the accused must be found "not guilty" if his guilt has not been proved to my satisfaction beyond reasonable doubt. It follows from this, of course, that if I am left unable to decide whether the Crown has proved its case in relation to any such essential ingredient, if I have a reasonable doubt in respect of that matter, the accused is entitled to the benefit of that doubt and I must find him "not guilty".

Murray Direction

The learned and experienced Crown Prosecutor took no issue that this is an appropriate matter for what has been traditionally referred to as a "Murray Direction", i.e. a direction in accordance with the principles enunciated by the Court of Criminal Appeal in Murray v R (1987) 11 NSWLR 11. Again, this direction applies to each and every count or sequence in respect of which convictions were recorded, noting that the Crown relies either wholly or substantially on the evidence of the complainant KE to establish the guilt of the appellant. None of the matters where convictions were recorded are allegations of a sexual offence.
Wherever the Crown seeks to establish the guilt of an accused person with a case based largely or exclusively on a single witness it is important that the tribunal of fact understand that they should exercise caution. In this matter, where I am both the tribunal of law and the tribunal of fact in this case the warning is equally important.
As the tribunal of fact I must exercise caution before I can convict the accused because the Crown case largely depends on me as the tribunal of fact accepting the reliability of the evidence of a single witness, namely the complainant KE.
The Crown relies solely upon the evidence of KE wholly in some cases but substantially in respect of others to prove the guilt of the accused beyond reasonable doubt in respect of each of the charges or sequences the court is considering. This being so, unless as the tribunal of fact I am satisfied beyond reasonable doubt that KE, the complainant, is an honest, accurate and reliable witness in the account she has given, I cannot find the accused guilty of any one or more of the charges under consideration. Before any verdict of guilty is returned as the tribunal of fact I should examine the evidence of the KE very carefully in order to satisfy myself that as the tribunal of fact I can safely act upon that evidence to the high standard required in a criminal trial or hearing.
A jury in a criminal trial would at this point be directed to the effect that that caution is not based upon any personal view that I might have of the complainant. In any criminal trial (or hearing), where the Crown case relies solely or substantially upon the evidence of a single witness, a jury or tribunal of fact must always approach that evidence with particular caution because of the onus and standard of proof placed upon the Crown.
This is not to suggest that as the tribunal of fact I am not entitled to convict the accused upon the evidence of KE, the complainant. Clearly, I am entitled to do so but I would be entitled to do so only after I have carefully examined the evidence and satisfied myself as the tribunal of fact that it is reliable beyond reasonable doubt.
In considering the evidence of KE and whether it does satisfy me as the tribunal of fact of the guilt of the accused beyond reasonable doubt I should of course look to see if it is supported by other evidence.

KRM

However, before going to the elements of the charges, given that there is more than one charge that I am considering, for more abundant caution I remind myself conformably with the decision of the High Court of Australia in KRM v The Queen (2001) 206 CLR 221, that because there are multiple charges there is a danger that I might reason that in respect of any one or more of the charges that the appellant was the kind of person who might have engaged in violent conduct towards the complainant on the other occasions charged or that he must be guilty of something. Such course of reasoning would be entirely wrong, and I direct myself that I must not use or engage in that course of reasoning. Each charge will need to be considered separately and a separate verdict will need to be given in respect of each of the seven charges or sequences that I am considering.

Markuleski

This next direction applies to all counts on the indictment. I have made clear a number of times that as the tribunal of fact, I must consider the evidence in respect of each charge on the indictment separately. It follows from that if as the tribunal of fact I have a reasonable doubt as to the truthfulness, accuracy and reliability of the evidence of the complainant KE in respect of one count or sequence as the tribunal of fact I can use that reasonable doubt to determine whether I have a reasonable doubt in respect of any of the other count or sequence that I am considering.

Essential elements of the charges under consideration

It is not every fact or every piece of evidence that the Crown must prove beyond reasonable doubt. The onus and burden that is on the Crown is to prove the essential elements or ingredients of the charges beyond reasonable doubt. As some of the counts, charges or sequences as variously described have the same elements it will be convenient to deal with the essential elements of those charges at the same time. However, for more abundant caution I remind myself that each charge or sequence must be considered separately and that separate verdicts will need to be given in respect of each charge or sequence.
I will deal with the charges in chronological order, i.e. the order in which they appear at [4] of these reasons. Sequence 11 is a charge that is commonly or shortly known as Assault Occasioning Actual Bodily Harm. Before I could find the appellant guilty of sequence 11 the Crown would need to satisfy me beyond reasonable doubt of the following essential elements or ingredients: 1. The accused assaulted the complainant; and 2. As a result of that assault the complainant was occasioned actual bodily harm;
An assault is constituted by any act committed intentionally or possibly recklessly that causes another person to fear immediate and unlawful violence. Given the manner in which the Crown put its case the Crown is clearly relying on an intentional act. The actual application of force, known at law as a battery can constitute an assault.
Actual bodily harm is essentially another expression that is given its ordinary English meaning. Actual Bodily Harm means any hurt or injury other than a trifling injury that interferes with the health and well-being of a person.
As I understand the respective cases the real or live issue is whether the Crown is able to prove beyond reasonable doubt that the assault as alleged occurred. I do not understand there to be any issue as to actual bodily harm i.e. the injury sustained by the complainant or perhaps put another way, the injury of which the complainant complains amounts to actual bodily harm. The real or live issue is how that injury was sustained, i.e. whether the Crown can prove beyond reasonable doubt that the appellant assaulted the complainant.
Sequences 15, 3, 16, 2 and 1 (in chronological order) are all charges of common assault and have the same essential elements or ingredients. I remind myself that I will have to consider each charge separately and return a separate verdict in respect of each charge. Before I could find the appellant guilty of sequence 15 and/or sequence 3 and/or sequence 16 and/or sequence 2 and/or sequence 1 the Crown would need to satisfy me beyond reasonable doubt of the following essential elements or ingredients: 1. The accused; 2. Assaulted the complainant.
I have already dealt with what constitutes an assault, namely any action that is committed intentionally or possibly recklessly that causes another person to apprehend immediate and unlawful violence. The actual application of force, known at law as a battery, can and often is relied upon by the prosecution as an assault. In the matter presently under consideration it is plain that the Crown case is that the actions of the accused were intentional and on each of the five occasions charged it is the actual application of force that is relied upon to constitute the assault.
It is not part of the case for the appellant that the appellant was acting in self-defence and accordingly there is no requirement for directions as to that issue.
Again, using chronological order as I understand the Crown case, the following acts are relied upon by the Crown in respect of the counts of Common Assault: Sequence 15: Spitting on the complainant's face. Sequence 3: Placing hands around the throat of the complainant, falling short of choking and shaking the complainant's head. Sequence 16: Grabbing the complainant's head and threatening suicide. Sequence 2: Pinning the complainant down and placing hands around the throat of the complainant again falling short of choking. Sequence 1: Same actions as relied upon in sequence 2.
That leaves sequence 14 which is the count of Aggravated Act of Cruelty to an Animal contrary to s 6(1) of the Prevention of Cruelty to Animals Act. Aggravated cruelty is defined in s 4, that is, the definition section, of the Prevention of Cruelty to Animals Act. The definition is, "For the purposes of this Act a person commits an act of aggravated cruelty upon an animal if the person commits an act of cruelty upon the animal, or being the person in charge of the animal, contravenes section 5(3) in a way which results in (a) the death, deformity, or serious disablement of the animal, or, (b) the animal being so severely injured, so diseased, or in such a physical condition that it is cruel to keep it alive."
Although the onus and burden of proof is on the Crown to the criminal standard the offence created by s 6(1) of the Prevention of Cruelty to Animals Act is one of strict liability. Dowd J said in Bell v Gunter, an unreported decision of 24 October 1997: "I consider, therefore, that the examination of the wording of the section and the wide range of Acts and omissions that are covered in the legislative context of protecting animal in all circumstances, that because of the general wording used the offences created do not require a component of intent. And that means mens rea is not part of the offences created which need to be proved. The prosecution does not have to prove any specific intent and particularly, the prosecution do not have to prove that there was any intention to be cruel or commit that act of aggravated cruelty as alleged."
In the matter presently under consideration the Crown case is that the appellant picked up the female dog named "Salt" which was a border collie-kelpie cross and struck the dog a number of times against the wall of a shed causing a back leg to fracture. It is not disputed that the appellant shot the dog the next day. There was before the Local Court a charge of Fail to Provide Veterinary Treatment of which the appellant was acquitted.
The case for the appellant in this matter is that the dog had previously killed young chickens that the appellant was raising, and on the day in question saw the dog with a chicken in its mouth and he kicked the dog. It occurs to me that even on the appellant's version he might be guilty of the offence, however, that was not the manner in which the Crown put its case either in the Local Court or on the appeal before me. The real or live issue in respect of sequence 14 is whether the Crown can prove beyond reasonable doubt that the dog was injured in the manner advanced by the Crown.

Appellant gave evidence - directions including "Liberato"

The appellant gave evidence at the hearing before the Local Court. That was a course he was entitled to take but it was not a course he was obliged to take. I will summarise the evidence of the appellant while reviewing the whole of the evidence. For more abundant caution, the directions I now give myself in respect of the evidence of the appellant applies equally to all counts or sequences that I am considering.
If, having considered that evidence, and the submissions of both counsel in relation to it, as the tribunal of fact I accept it, then of course I must acquit the appellant and bring in verdicts of "not guilty", because it would follow that the Crown has not established beyond reasonable doubt its case in relation to an essential matter, which it must prove.
If, after having given consideration to the evidence of the appellant and any evidence which the Crown asks me to take into consideration, as the tribunal of fact I do not positively accept the evidence of the appellant, but that evidence leaves me nevertheless with a reasonable doubt as to whether the Crown has made out its case in respect of any essential matter which it must prove, then as the tribunal of fact I am bound, in law, to bring in verdicts of "not guilty". In other words, it is not the position that as the tribunal of fact I have to believe that the appellant is telling the truth before he is entitled to be acquitted. As I have previously emphasised it remains the position that the Crown must establish beyond reasonable doubt the charge, which it brings against the accused, and it is never for the accused to prove that he or she is not guilty.
Another way of expressing what I have just said is that if as the tribunal of fact I accept that what the appellant said in his evidence is a reasonable possibility then he is entitled to an acquittal. I do not have to as the tribunal of fact reject the evidence of the complainant before I entertain a reasonable doubt about the guilt of the accused.
The accused has not assumed any onus because he has elected to give evidence. Nor does the evidence of the appellant achieve any special status merely because it is evidence from the appellant. The evidence of the appellant is assessed the same as any other witness.
Further, even if I were to reject the evidence from the accused, I simply put the evidence of the accused to one side; and further, before I could return a verdict of guilty in respect of any one or more of the counts or sequences as the tribunal of fact I would still need to be satisfied beyond reasonable doubt of the guilt of the accused on the material contained within the Crown case.
On the subject of the accused giving evidence there is one other matter that I wish to make very clear. It is not simply a case of comparing the versions in the Crown and defence case. As I have already said a number of times the onus of proof is on the Crown from beginning to end to prove its case beyond reasonable doubt.

Section 165 warning - WE

Counsel for the appellant asked for a direction pursuant to s 165 of the Evidence Act in relation to the evidence of the child WE. Such a direction does not seem to have been sought at the hearing before the Magistrate. However, given the age of the child taken with the stated reluctance of the child to give evidence I direct myself that the evidence of WE may be unreliable. That is not to say that I should find that his evidence is unreliable, merely that I should be alert to the possibility that his evidence may be unreliable when as the tribunal of fact I come to consider the evidence of WE.

Complaint direction

In this matter the Crown relies on what is commonly referred to as complaint evidence. I will identify and summarise the evidence when I deal with the evidence later within these reasons. However, while dealing with the necessary directions of law I will deal with the manner in which I must deal with that complaint evidence.
It is for me as the tribunal of fact to decide whether the complaint was made, if I am satisfied that it was, then the rhetorical question I should ask is did the complainant act in the way that one would expect her to act if he had been sexually touched as she said she was. Is what she did the sort of conduct you would expect of a person in her position at the time? If as the tribunal of fact I think that the complainant has done what one would expect someone in her position to do, that may support the Crown case because it makes the evidence of the complainant more believable. As the tribunal of fact I may find that there is a consistency between the complainant's conduct and that the allegation she makes against the accused.
On the other hand if the complainant has not acted in the way you would have expected someone to act after being sexually assaulted as she described, then that may indicate that the allegations are false. But remember that there may be good reasons why the complainant did not raise the allegations immediately and that a failure to do so does not mean that the allegation is false.
However, the complaint evidence is essentially the complainant telling other people what she says the appellant did to her. Of course, the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasions.

Character

There was evidence before the learned Magistrate that the appellant had not previously been convicted of any criminal offence. Further, there was a positive character case put forward in the appellant's case in the form of a bundle of references. As the tribunal of fact I can also safely assume that if there was something to the contrary known about the accused I would have heard about it. Accordingly, as the tribunal of fact I can safely proceed on the basis that the appellant is a person of good character.
The law provides that you can take the good character of the accused into account in two but equally important ways.
First, the fact that the accused is a person of good character entitles me as the tribunal of fact to consider the improbability of him having committed the offences alleged and in particular the improbability of the accused performing the various alleged acts of violence towards the complainant. In other words, as the tribunal of fact I am entitled to take the good character of the appellant into account on the question of his guilt.
Further, as the tribunal of fact I am entitled to use the evidence that the appellant is of good character in another but equally important way. As the tribunal of fact I am entitled to find that I can more readily accept the denials of the appellant that he was involved in the type of criminal activity that is alleged against him. The appellant has denied the charges by pleading not guilty before the Magistrate, bringing a conviction appeal to this court, challenging the Crown case in cross-examination and giving evidence in his own case in the Local Court denying the allegations.
None of this means, of course, that good character provides the appellant with some kind of defence. It is only one of the many factors that as the tribunal of fact I must take into account in determining whether I am satisfied beyond reasonable doubt of the guilt of the appellant. What weight as the tribunal of fact I give to the fact that the accused is a person of good character is completely a matter for me but I am obliged to take that fact into account in the ways I have indicated.
The allegations under consideration in this matter are allegations of repeated and ongoing domestic violence. It is tolerably plain from reading the transcript that towards the end of the relationship there was acrimony between the complainant and the appellant. The good character of the appellant achieves some weight in the process that as the tribunal of fact I have to undertake.

Motive to Lie

The case for the accused in the Local Court and continued on to the appeal is that the complainant had a motive to lie, namely, to advance her position in the family law litigation. In this regard I note the following extract towards the end of the cross-examination of the complainant (26/02/24, p 47 line 8ff): Q. You see, by September and October, things weren't good in the relationship, were they? A. They were always on and off, not good. I mean, a week later, it was my birthday, and [TF] bought me what I wanted. Things would quickly bounce back and then go back, and it was the highest of highs and lowest of lows, our relationship. They - they would be up and down. Q. What I want to suggest to you, [KE], is that by late 2022, you were fearful that Mr [TF] would end the relationship. A. No, I hoped that he would. My dad asked - my parents even asked him to. Q. Ma'am, you've made both of the allegations about Mr [TF] having his hands around your throat. They're both false. What do you say to that? A. I haven't made up anything. That is what happened. Q. You did so with a view to seeking advantage in family law proceedings, didn't you? A. I had no intentions whatsoever of being - of going through court at that point in time, no. Q. Because you've still got the house, don't you? A. I'm selling the house because [TF] has breached the AVO, and it scares me. Q. You've still got, in effect, sole custody of [WE], haven't you? A. Yes, I do. Q. [WE] goes to school, mostly known as [redacted], doesn't he? A. Yes. Q. Mr [TF] doesn't have his firearms, does he? A. I believe not. Q. He-- A. Not the registered ones, anyway. Q. His firearms licence has been suspended, hasn't it? A. To my knowledge, yes. Q. So you've gotten all that you wanted? A. No, I haven't. I would not want this.
I acknowledge the following on the issue of motive to lie comes from the Criminal Trials Bench Book. A motive to lie or to be untruthful, if it is established, may substantially affect the assessment of the credibility of the witness. Where there is evidence that a Crown witness has a motive to lie, it is the task of the tribunal of fact to consider that evidence and to determine whether they are nevertheless satisfied that the evidence given is true. As the tribunal of fact I must not speculate whether there is some other reason for the complainant to lie. Indeed I must not speculate about anything that is not the subject of evidence.
Although the case for the appellant asserts a motive to lie on the part of the complainant there is no onus on the appellant to prove that motive. Further, even if that motive to lie is rejected that does not justify a conclusion that the complainant is telling the truth.
Even if there is no motive to lie advanced the complainant cannot by that fact alone be found to be telling the truth. In this regard I note and have regard to the decision of R v Jovanovic (1997) 98 A Crim R 1 at 24 per Sperling J. I also note and have regard to the decision of South v R [2007] NSWCCA 117 particularly at [42].
Given the totality of the evidence the motive to lie advanced by the appellant is not something I am prepared to reject. It must feature in the decision making process in this matter.

Tendency Evidence

The only legal direction that remains to be dealt with is the direction relating to the tendency evidence. For reasons given earlier in this decision I do not intend to revisit the issue of admissibility of the tendency evidence. I will identify the evidence relied upon by the Crown as tendency when I come to that part of the evidence.
The Crown relies on what is called tendency evidence. In short, the Crown says that the evidence of the complainant in respect of the specific counts is cross-admissible in order to show that the accused had the tendencies identified and set out at [13]ff of these reasons, when I dealt with the issue of counsel on the appeal seeking to revisit the forensic decisions of Senior Counsel in the Local Court. The Crown case is that this makes it more likely that he committed the specific acts relied upon by the Crown in respect of the specific counts on the indictment.
As the tribunal of fact I will need to consider the evidence relating to this alleged conduct of the accused and decide whether he did in fact conduct himself in the way the Crown alleges. In doing so, as the tribunal of fact I do not consider each of the acts in isolation, but consider all the evidence and decide what conduct I am satisfied occurred.
If I decide that all, or at least some, of the conduct occurred, I then need to consider whether it enables the inference to be drawn that the accused had the tendencies as alleged.
For more abundant caution I remind myself of the direction relating to the drawing of inferences, in particular, I should not draw an inference from the direct evidence unless it is a rational inference in the circumstances. As the tribunal of fact, I should bear in mind those directions when I am considering this part of the evidence.
If as the tribunal of fact I am not satisfied that any of the conduct the Crown relies upon occurred, then there is no basis upon which the tendency could be inferred. In these circumstances, I simply put the whole issue of tendency to one side and confine my consideration to the other parts of the Crown's case.
If as the tribunal of fact I find the accused did have the tendencies as alleged then as the tribunal of fact I can use that in considering whether it is more likely he committed the specific offences with which he is charged. However, it is essential that I consider in relation to each charge whether the accused acted in that particular way on that specific occasion.
Finding the accused did have the tendency the Crown alleges is not enough to prove guilt. It may assist the Crown to prove the accused committed the offences, but it is not enough by itself. The question is whether it makes it more likely the accused conducted himself in the way the Crown alleges on any of the occasions that are the subject of the charges. That is the only way the accused's tendencies as alleged may be used.
Ultimately it is for me as the tribunal of fact to decide whether the specific offences with which the accused has been charged have been proved. That decision must be based upon the evidence relevant to each of the charges. This includes the evidence of the complainant about what the accused did. It will include the tendency alleged by the Crown, provided I am satisfied it has been established.
When considering whether a charge has been proved, as the tribunal of fact I will have to decide whether the Crown has proved the essential elements of that charge. I note I have already set out the essential elements or ingredients of the charges.
The tendency evidence cannot be used other than in the way I have described, part of what I am saying is that I must not substitute the conduct of the accused on some other occasion for the conduct that is relied upon by the Crown to prove a particular charge.
The evidence the Crown relies upon to establish that the accused had this tendency is of a type that might provoke people to have an emotional response to it because it might be regarded as a distasteful way for a person to have behaved. As with a lay tribunal I will need to exercise care to avoid allowing any emotional response or prejudice to distract me from a calm and objective assessment of this issue.

Review of the Evidence

Initially I will go to the evidence of Elizabeth Dunlop, who was the next-door neighbour of the complainant and the appellant when they lived at Kooringal in 2019. Ms Dunlop made a statement to police on 12 January 2023 in respect of an incident that is said to have occurred on 12 February 2019. Ms Dunlop gave an account of there often being yelling and arguing from where the appellant and the complainant lived. The evidence of Ms Dunlop is part of the tendency evidence relied upon by the Crown.
At pp 80ff of 18/8/23 Ms Dunlop, speaking of the events of 12 February 2019, said she heard the appellant and the complainant yelling at each other with lots of language. She maintained she could hear the appellant very clearly and he was calling the complainant "a fucking cunt, a dumb bitch" (p.81:04). The complainant was holding the child WE in her arms and at one point she heard the complainant shout "get away from me", or "get back" or something along those lines. She went on to say that the type of thing occurred regularly. She meant by that it was every couple of weeks, if not weekly, and the conduct was becoming more frequent.
The evidence of Ms Dunlop continued (page 82) that on the occasion that she heard the words "get back, get away" she made two calls to the police. The calls Ms Dunlop made to police were recorded.
Ms Dunlop went on to give evidence (page 83) that she did not know the actual sequence of events or timeframes, but she clearly remembered them being in the alfresco area when she was in the back garden and the appellant pushed the complainant by the shoulders whilst she was holding the child. She only saw that once.
In cross-examination it was put to Ms Dunlop that the arguments and confrontations were less frequent than what she would have the court believe. She disagreed with that. It was also put to her, but denied, that she could not see the alfresco area from her residence.
I now go to the evidence of the complainant KE. The relationship between her and the appellant began in 2015 and the child WE was born on 30 November 2016. The relationship ended on 13 December 2022. During the period of the relationship the appellant and the complainant separated "financially" for about 2 ½ years but they kept seeing each other. The separation occurred at the time that Ms Dunlop called the police. The appellant was of the opinion that it was the complainant that called the police. In July 2021 the relationship continued, and they purchased the property at Carabost, which is between Wagga Wagga and Tumbarumba.
Going to sequence 11 (incident 1 - Assault Occasioning Actual Bodily Harm) the complainant gave evidence (p 5 18/8/23) that on 18 April 2018 there was an incident in the dining room at the home in Kooringal. The appellant was of the opinion that the complainant was recording him on her mobile phone. He asked for her phone, she would not give it to him, he grabbed her around the shoulders, and tackled her to the ground. The appellant got the complainant's phone and saw that she was not recording. As a result of this incident the complainant sustained a bruise on her elbow and upper leg. The next day she sent the appellant a snap chat message including a photograph of the bruising she included a caption "Already huge lump and bruising coming through and that's just the one on my elbow that's not fair at all [TF].." A copy of the photograph is Exhibit 17.
The next matter of which the complainant gave evidence related to sequence 15 which is incident 2. It is alleged to have occurred on 2 December 2021. The complainant was hosting Christmas in December 2021 and she had invited her family for Christmas. She was on the ride on mower in the garage, preparing to mow the lawn. The complainant maintains that the appellant came up to her, took the keys from the mower told her that she could not use it and they had an argument. Before walking away, the appellant spat in the face of the complainant.
Following this incident the complainant sent a text message to her friend Brodie Finnigan. A hard copy of message is in Exhibit 10. That message forms part of the complaint evidence. The message exchange goes on for some time during which Brodie Finnigan appears to be encouraging the complainant to leave the appellant.
In December 2021 the appellant was incubating chickens at the property at Carabost. The evidence of the complainant and the Crown case in respect of sequence 14, that is the charge of Aggravated Cruelty to an Animal, is that the appellant became angry when he saw a dead chicken on the lawn. At p 15 (18/08/23) the complainant gives an account of the appellant going into a rage picking up the dog called "Salt" by the collar and "flogging her against the shed, just over and over again." This apparently happened near a side door to the shed. The child WE apparently witnessed this and was "bawling his eyes out". The complainant maintained she was screaming at the appellant begging him to stop. A little later (page 18) the complainant said that one thing that will never leave her mind is the yelp of the dog. The complainant maintained it would not be exaggerating to say that the appellant struck the dog against the shed 25 times. According to the complainant he threw the dog on the ground and her right hind leg was obviously very severely injured. The complainant said "it was just like fully dislocated just hanging off her."
The complainant's evidence continued that she said to the appellant that they needed to take the dog to the vet. The appellant maintained that he was not going to take the dog to the vet, nor would he allow the complainant to take the dog to the vet. The complainant gave evidence that she spoke to her mother about the incident. The following day the complainant, appellant and WE went to Wagga Wagga. The appellant called in at The Lake Road Veterinary Clinic and attempted to purchase painkillers for the dog however the vet would not dispense any medication without seeing the dog. The complainant's evidence continued that upon arriving home the appellant threw the dog on to the back of his utility and took it away to shoot it. She presumes the dog was shot and she never saw it again.
Exhibit 16 is a hard copy of messages sent by the complainant to the appellant. It reads "These chickens are dying flat out and you bloody killed our family dog over them". Further, "Another two, bloody sick of it. Take them back to Jugiong like I asked you to weeks ago. [WE] and I wouldn't be left heartbroken if they weren't still here spreading disease and if you weren't such a psychopath." Further, "I don't want you near me or [WE] until you get help. What you did was disgusting and you still insist it was normal and I should just 'fucking get over it'. You have no heart and no morals apple doesn't fall far from the tree".
After giving evidence so far as the dog was concerned, the complainant's evidence continued that she was very upset over what occurred with the dog. She was in the kitchen crying over what happened with the dog. She maintains that the appellant, "kept calling me a fuckhead" and told her to stop crying. She kept crying and the appellant said to her, "Shut the fuck up or I'll bury you under the ground". This evidence grounds the charge of intimidation which was sequence 12 before the Local Court. The learned Magistrate entered a verdict of acquittal in respect of that charge.
The complainant then gave evidence about sequence 4, which is the damage to property charge to which the appellant has pleaded guilty. The complainant maintained that on 22 December 2021 an argument commenced over the complainant telling the appellant that her family was coming for Christmas. According to the complainant, the appellant became enraged and began taking photographs off the wall, pulling the photos out of the frames and throwing the frames out of the front door thereby smashing them. The appellant maintains that he merely damaged a few photographs.
Exhibit 11 before the Local Court is a series of text messages between the complainant and her friend Brodie Finnigan. The messages include a complaint about smashing the photographs. A further one of the messages reads "Like you told me last night he knows what he did to Salt was wrong and he feels bad for spitting on me but is not apologising for any of it." A little later in the exchange the complainant sent a message "Brodie I can hear so much banging and stuff up the other end of the house. I'm scared he's smashing my stuff."
The evidence (beginning p 37:19 18/08/23) then moved to sequence 3, which is incident 6, an allegation of Common Assault. The complainant maintains that in some time in April 2022 she and the appellant were in the wardrobe, an argument developed and the appellant grabbed her head and shook her head. The appellant was yelling at her. Further, the complainant maintained that at one point the appellant put his hands around her throat. This was not forceful but he was yelling at the time; this made the complainant feel intimidated, uncomfortable and degraded.
Sequence 16, incident 7, also relates to a charge of Common Assault. The evidence begins at p 40:01. This incident is alleged to have occurred on 27 April 2022. The appellant and the complainant were at home and WE was at school. The complainant maintained that the appellant constantly monitored her by using hidden and camouflaged cameras. On the day in question the complainant was recording the appellant on her phone. There was a discussion between the two of them. The appellant is alleged to have threatened to suicide by hanging himself in the shed and then he grabbed the complainant's head and said, "How do you like it if you come out and old [TF]'s swinging in the fucking shed."
The complainant then gives evidence in respect of two allegation of sexual touching, one of which was withdrawn (sequence 10) and the other (sequence 9) resulted in an acquittal. It will be necessary to go into the evidence of these matters as one of the main arguments raised by counsel for the appellant is that the learned magistrate returned inconsistent verdicts.
At p 47:12 (18/08/23) the complainant maintains there was an occasion between June and September 2022 when they went to the town of Rosewood. Upon returning after lunch the complainant was sitting on the lounge and she recalls the appellant coming over and sitting on the arm of the chair and, "he just started pounding my vagina in front of [WE] and he said to [WE], 'does this feel nice on mum's punani'". A little later (page 48) the complainant said that what concerned her most was that it occurred in front of WE. The complainant maintained that she was asking the appellant to get off her and she was trying to push him away.
Next the complainant gave an account of a further allegation of sexual touching (sequence 10, which was withdrawn). At p 52:39 the complainant gives evidence of the appellant doing "lots of sexual things in front of [WE]". Whenever she would shower, WE would quite often run out to the appellant and say "Mum's got her boobies out." Both the appellant and WE would run to the bathroom. It was put to the complainant were occasions when the appellant attempted to grab the complainant's breast in front of WE. She went on to say that this happened multiple times.
The evidence then moves to sequence 13 which was a charge of intimidation in respect of which a verdict of acquittal was entered. The incident is alleged to have occurred on 17 June 2022. The complainant was working from home. According to the complainant the appellant was in a "really bad mood" and was "stomping around the house and stuff". He walked into the walk-in wardrobe which is where the gun safe was located and he obtained a firearm out of the safe. The complainant "panicked and quickly moved into the lounge room with [WE]". The appellant came out of the bedroom holding a rifle. At p 58 the complainant gave an account of the appellant "Sort of like holding it like in his arm but not - not like down but like it's, so the end of it like is sort of pointed to us but he wasn't actually pointing the rifle." The appellant was holding bullets in his other hand. The appellant a little later threw the bullets down the hallway, went to the garage and got into his utility and drove off. The bullets were thrown in the direction of the complainant.
Exhibit 18 is a hard copy of text messages between the complainant and Vincent McGrath. Part of one entry is "… This is a bloke that has trashed the house on multiple occasions, physically abused me, bullets at me… But I am too fucking dumb to record…". There is also a complaint by the complainant to her friend Brodie Finnigan about this. At page 12 of Exhibit 9 there is a message from the complainant which reads, "He also had a gun last night which was fucked" and on the following page message, "No like had one in his hand when he was in a rage" followed by "Chucked a pack of bullets across the room". Read in context the word "one" could only be a reference to the firearm.
The irresistible inference from the complainant's evidence taken as a whole about this incident is that she was afraid for her personal safety and that of the child WE.
I now go to the last two allegations where convictions were recorded in respect of charges of Common Assault, which were back up charges and acquittals entered in respect of the primary charge of Intentionally Choke Without Consent.
Going initially to sequence 2 (Common Assault) and sequence 8 (intentionally Choke)(beginning p 68:14). This is said to have occurred in September 2022. The complainant gave evidence of an occasion when she woke up to find the appellant on top of herm with his hands around her throat. His legs were pinning her down on the bed. She remembered screaming. She went on to describe the appellant straddling her with his hands tightly around her throat. Later in her evidence she said the pressure with which the appellant was holding her around the neck was "very tight" when asked (page 70) whether she was able to breathe she replied "Well I would think if I'm screaming that's breathing".
The evidence in respect of sequences 1 (being Common Assault) and 7 (being the Intentionally Choke charge) begins at p 71:44. This incident is said to have occurred between 16 and 18 October 2022 at the home at Carabost. The appellant and complainant were both in bed at around 10 pm. The complainant was scrolling on her phone, the appellant told her to get off her phone. The complainant said she was not ready to go to sleep. The appellant "just pounced on me and put his hand around my throat again". The description of the offender continued that their respective positions were essentially the same as the previous occasion. The complainant maintains that the appellant had his hands around her throat and pressure was "very forceful" the complainant was screaming. The account continued that the appellant said "shut the fuck up or you'll wake [WE]". She does not recall how the incident came to an end.
Further, the complainant maintained the following morning she and the appellant were in the kitchen when she said to him something to the effect of "I can't just carry on normally after you choked me last night". According to the complainant the accused replied "You have no marks so it never happened".
There is some complaint evidence about what I will refer to for ease of expression as the choking incidents. There is a message to Mr McGrath within Exhibit 18 which reads "He's too fucking smart for that. I woke up to him with his hand around my throat abusing me but I've had no marks so he didn't do anything apparently".
The cross examination of the complainant took place on 26 February 2024. The complainant agreed (page 16) that the relationship was troubled over the years. The complainant denied that she did not want the appellant to leave the relationship and she also denied threatening to go to the police with false allegations if he did in fact leave the relationship.
The complainant agreed with the suggestion that the relationship is clearly at an end and she also agreed that there are ongoing family law proceedings. It was put to the complainant (generally p 17 26/02/24) that she had the family law proceedings in mind. She said, "I never had any of this in my mind, I did not think any of this, I just never pictured any of this". The cross-examination continued with the complainant essentially agreeing to the propositions put that were to the effect that she was aware of the child and the property and that it was inevitable that something had to be done about those issues.
Mr Dennis SC then cross-examined the complainant on the issue of the child WE changing his last name to that of the complainant rather than keeping the last name of the appellant. The complainant maintained that that was a decision that the child made himself when he was 6 years of age. The change of name was not communicated to the appellant's legal representatives. The complainant maintained that she did not influence the child on the issue of changing his name.
However at p 19:41 (26/02/24), "He's the father of the child, you didn't think he needed to have some say in that?" The answer was, "No, I think he sort of voided his rights with what he did". Senior counsel went on to ask (p 20:03), "And I suggest to you, Ms [KE], that the notion that a child of that age comes forward completely off their own bat with the idea to change their own name is simply not true. What do you say to that?" The answer was, "I disagree with that. I think you will find half the kids at [WE]'s school, due to fostering and stuff like that have had name changes and he wanted the same last name as his mum, his primary carer".
WE also gave evidence about this aspect. At p 50-51 (17/08/23) the following appears: Q. Do you know why your name changed? A. I'm not sure. I just wanted it to be [WE]. Q. And did you think of that all by yourself? A. I just wanted to be called [WE]. Q. Did you talk to mum about your name changing from [WF] to [WE]? A. I - I told her that I wanted it to be [WE]. Q. And before you told mum that you wanted to be [WE] did mum talk to you about your name? A. Mm yeah - no. Q. No? A. I don't know, I don't know. Q. And how did you feel about your name changing from [WF] to [WE]? A. All good. Q. Sorry? A. Good. Q. You felt good? And did mum tell you it was a really good idea to change your name? A. No. Q. And when you changed your name you were six years old, is that right? A. Yes. Q. And you thought of that all by yourself? A. No I just wanted to for my name to be that. Q. And you just - did you just go to mum and say "mum I've decided I want my name to be [WE]?" And mum said "Oh that's nice" and no more talking about your name, is that what happened? A. Yeah. Q. I'm going to say something and I want to tell you - I want you to tell me if what I'm saying is right, okay, you understand? A. Okay. Q. I'm saying that your mum thought of the idea to change your name to [WE], am I right about that one? A. No I don't understand. Q. All right thank you. HER HONOUR Q. Sorry I just want to check that with you [WE]. So is that something you don't agree with or you don't understand what he's saying? A. I don't understand like she - I don't think she - she didn't tell me to change my name I just wanted it changed.
As the tribunal of fact I have very great difficulty is accepting the proposition that a child of 6 years of age of his own volition would, without suggestion or prompting, want to change his last name to "the same name as his mum, as his primary carer". It is blatantly obvious from the additional questions in evidence in chief of WE that he was a very reluctant witness. In this regard I also note the prosecutor's statement to the court that WE did not want to give evidence.
The next issue in cross-examination related to Sequence 11, i.e. the alleged incident on 18 April 2018, which is incident number 1. Mr Dennis SC put to the complainant (see generally p 21 26/02/24) that she received the injuries which were photographed as a result of a fall from a horse. The complainant maintained that she also sustained bruising to the upper leg and hip area. A complaint was made about the incident to a Ms Wilesmith. The complainant said that she did not show Ms. Whilesmith the bruises to her upper leg and hip area as it would have meant having to pull down her pants. It was put but denied that the allegations are false, and were to lay the groundwork for some allegations in the future.
During the cross examination on this issue the complainant said that a neighbour's daughter witnessed the tackle. That person was not called to give evidence. The complainant believed that she told the police that that neighbour did in fact witness the tackle.
It was also put to the complainant that the allegation relating to the appellant spitting on the complainant's face while the complainant was sitting on the ride on mower was false. It was put but denied reporting the matter to Brody Finnegan was part of the strategy that the complainant was pursuing in relation to making false allegations about the appellant.
The complainant was then cross-examined about the charge relating to the dog, that is sequence 14. Initially senior counsel put to the complainant that the allegation is false but she maintained it was true. It was put that they were in fact dead chickens located on the lawn. In an unresponsive answer the complainant said, "I didn't see the particular dead chicken that I referred to, but I had witnessed multiple chickens die in that cage." She denied that the dog had a chicken in its mouth. A number of propositions were put to the complainant (see page 26) which were answered with, "I did not witness that" or "I did not see that". Reading the transcript of the whole it is difficult to discern whether the complainant is denying what was put to her or saying she did not know one way or the other.
However, the complainant was certain that she witnessed the appellant picking up the dog and "flogging it against the workshop shed" (page 27). The cross examination continued that there was a discussion between the complainant and the appellant about after hours fees for a vet. At page 28:04 the complainant was asked, "And I suggest to you that part of that discussion, the issue was raised that after hours, that these were not affordable. What do you say about that?" In answer that was not altogether responsive the complainant said "He worked in the mines after hours; vet bills were affordable".
There was also an issue in cross-examination as to the complainant not actually attending the vet. She maintained (page 28:21) that she was not allowed to go with him. It was then put to her that there were Covid restrictions in operation at the time. The complainant could not remember. At pp 28-29 the complainant was asked whether she agreed with the appellant the best option was to put the dog down and she replied to the effect that she believed the best option was to take the dog to the vet but if "we weren't allowed to take it to the vet, then that was the only option yes". It was then put to the complainant that she had influenced the child WE so far as his account as to what occurred with the dog.
The cross examination then moved to sequence 12, which is a charge of intimidation in respect of which the appellant was acquitted. It was put to the complainant that the allegation was false but she maintained it was true. She agreed with the proposition that the incident occurred in December 2021 that the statement was not made about it until about a year later. The complainant also maintained that statement (the threat to bury her under the ground) was made in front of the child WE.
The cross examination returned to the issue of "Salt" the dog at pp 36ff. At p 37:31 the message from the complainant to the appellant was put to her namely, "You need to take Salt to the vet. If they say it can't be fixed and has to be amputated or something, then we will take her home and give her a bullet. But if we can fix her for a few hundred dollars, you owe it to her - seeing that she broke her leg - and you owe it to [WE] and I. I'm not going to forgive you if you don't make things right. Do the right thing". It was then put to the complainant (p. 38) "Your position was you were prepared to spend a few hundred dollars, otherwise the dog at a bullet. Yes or no?" Answer "Yes. Well - -".
It was put to the complainant that she had been caught lying; that was a difference in her evidence before and after the morning adjournment. The complainant said that she remained consistent with saying that she wanted the dog to go to the vet. Whilst that is the case, there is clearly a difference between what the complainant said before and after the morning adjournment about the issue of cost and taking the dog to the vet. The appellant was found not guilty of being in charge of an animal and failing to provide veterinary treatment.
The issue relating to the dog "Salt" was also raised in re-examination of the complainant. At pp 50-51 26/02/24 the following appears: Q. Then on 16 December 2021, 3.41, you've said, "Done". What does that relate to? If you recall. (reference to a text message) A. I'm a bit embarrassed to admit this, but before we went to the Lake Road Vet Clinic, I had a hair appointment. Q: You've gone to the hair appointment. A. Yes. Q. You're saying that you're done with your hair appointment? A. Yes, for him to pick me up. Q. Where were you when you sent the text message at 2.14pm then? A. Sorry. So I would have been at the hairdresser's sending that. Q. This is in Wagga; is that correct? A. Yes. Q. Again, just to clarify, you cannot recall what your motive was in sending that text message today? A. Sending that text message - Q. Yes, the one that starts, "You need to take-- A. To get the dog to the vet. I just wanted her to see a vet.
Of course, the dog was at the property at Carabost and not with the appellant and the complainant in Wagga Wagga.
The complainant was then asked questions in relation to the damage property charge. It was put to her that there was no specific mention made in her police statement to photo frames being broken, "And that's because photos going out the door did not happen. What do you say to that?" The complainant said that she could recall glass in the driveway. When asked why she didn't tell the police that she said, "I think I didn't tell the police a lot of things there was just constant - there was so much that went on as time has gone on, I have remembered more things, I have found evidence of more things, text messages of more things." It was put to the complainant but denied that she had exaggerated her account out of spite.
There was some cross examination, which does not appear to be of any particular consequence so far as the arrangements as to which families were to attend the property at Carobost for Christmas.
Mr Dennis SC then cross-examined on some of the contents of Exhibit 18, that is the text message exchanges between the complainant and Mr McGrath. On the page of the exhibit that commences with messages at 10:07 pm the complainant says in a message, "Yes he can, he's already been doing it with his stupid videos the creep. He also keeps carrying on that I have way more assets than he does and it's just hit me… Everything I buy I put in my name, I don't reckon he has been with what he buys, he is going to fuck me over". There immediately follows another message, "The first solicitor I ever got detailed my horses and unrealistic prices for them and he'd made his assets 'disappear'". She conceded a little later that she had received legal advice as early as 2019.
It was put to the complainant, "Ma'am I suggest to you that you were aware as a result of advice that there were potential consequences in terms of family law outcomes. What do you say to that?" The answer was "I didn't think of family law outcomes once we were back together, I continue to put everything in my name and Family Law Court will show that".
It is obvious from what is extracted in the paragraph immediately above that the complainant was at least alert to the issues of the Family law Dispute, including the dispute of the distribution of property.
The cross-examination relating to sequence 3, a charge of Common Assault begins at p 39:43. It was put to the complainant that that incident did not occur, but unsurprisingly she maintained that it did. However, she also added that, "It happened quite often". It was also put but denied that what she told Mr McGrath about the incident was also false.
The complainant was also cross-examined about an audio recording played in her evidence in chief on which can be heard the appellant threatening self-harm. The complainant is heard saying "get off me". The complainant conceded (somewhat reluctantly on my reading of the transcript) that the appellant did not threaten her with physical harm. She said, "Not verbally, but I think you can hear that he was pushing boundaries in that recording, yes".
It is obvious from the evidence that the appellant had various surveillance cameras located around the property at Carabost. The complainant gave evidence on a number of occasions about those cameras. Clearly enough, the inference that she would be asking the court to draw is that those cameras were essentially for the purpose of keeping her under surveillance. It was put to the complainant (p 42) that the cameras were there to protect the machinery. She maintained the cameras were not focussed or trained on those items.
Mr Dennis SC put to the complainant that the sexual touching alleged by her of the accused rubbing her genital area on the outside of clothing did not occur. She maintained that it did. When asked why did not tell anyone she said, "It's a pretty disgusting hting to tell". So far as the allegation of touching on the breasts the complainant (p 44) gave evidence to the effect that it happened quite a lot of times but she could not remember any specific incident. It was put that no such thing happened but she maintained that it happened frequently.
It was likewise put that the incident with the firearm and bullets (sequence 13, Intimidation) did not happen. She maintained that it did. The complainant also denied the motivation behind the allegation was so the appellant would have his firearms confiscated and Firearms License suspended. She also maintained in an unresponsive answer that the appellant has continued to go shooting and that he still has access to firearms. The complainant also denied coaching WE so far as this incident was concerned.
Counsel for the appellant also put to the complainant that the alleged choking incident did not occur. Again, she maintained it happened. It was put by counsel for the appellant that the allegation was a fabrication to discredit the appellant. That too was denied.
The cross-examination of the complainant concluded by Mr Dennis SC with the series of questions and answers set out at [95] of these reasons when dealing with the directions on motive to lie.
I now turn to the evidence of the child WE. In the interview MFI 3 WE says, "Aw, Dad flogged it into the shed 100 times for no reason. He told us a lie about she had a chicken in her mouth" WE said he was at the shed when this happened. The effect of his evidence is that he was close to where this occurred.
In MFI 4 the following is attributed to WE: S/C Gibson: Can you tell me what it's like living with mum and dad? WE: Bad, because dad always use [sic] to yell at me for no reason and he also killed my dog and it was my favourite. And he would always yell at my mum when I was in bed. And then there was this night he came out with the gun he lied to me and said he was going to go fox hunting but then mom told me he lied to me because he did say a few days earlier after Salt died he was going to kill my mum S/c Gibson: Who said that? WE: Dad S/C Gibson: What did he say exactly? WE: That he was going to kill my mum and he said it in the kitchen S/C Gibson: Do you remember the words he used? WE: I'll kill you and when he had the gun he dropped his bullets and got mad temper at mum and he said F'in idiot. S/C Gibson: He called mum an f'in' idiot? WE: Yeah S/C Gibson: And that's when he had the gun? WE: Some other mean words but I forgot S/C Gibson: Sorry what? WE: Some other mean words but I forgot
The account by WE continued to the effect that this happened in the kitchen a few days after Salt died. It occurs to me that this account relates to sequence 13, i.e. the charge of Intimidation in respect of which the appellant was acquitted in the Local Court.
The interview within MFI 5 seems to have been conducted by a trained JIRT officer. WE was again asked about the incident concerning the dog "Salt". Question 48 was, "How do you know your dad killed Salt?" to which WE replied, "Ah, like he bashed her against the shed and he done that and said she killed a baby chicken but she didn't".
In oral evidence at p 47 - 48 (17/08/23) the following appears: Q. Do you remember when you told police - you said "dad flogged Salt into a shed"? A. Yes. Q. Is there anything more you want to tell her Honour about that today? A. No thank you. Q. That's all right. And then you remember when you told police about what happened a day or so after that Salt died? A. I didn't say anything a few days later. Q. Yeah you said this, you said that your dad said he was going to kill mum and he said it in the kitchen? A. Oh he said he would kill himself. … Q. [WE] in one of your interviews you said this to police you said this "a few days earlier after Salt died that he was going to kill my mum". That's what you said dad said. Is there anything you want to say about that today? A. No thanks, and you've already asked that question.
Under cross-examination WE maintained that he wanted to be called by his mother's last name. However at p 50:22 Mr Dennis SC asked, "And before you told mum that you wanted to be [WE] did mum talk to you about your name?" The answer in my view is very telling, namely "Mm Yeah - no". I note my earlier observation that as the tribunal of fact I have very great difficulty is accepting the proposition that a child of 6 years of age of his own volition would, without suggestion or prompting.
WE gave a particularly compelling account of what occurred to the dog "Salt". Noting the age of WE I do not see any particular issue with him saying that the appellant struck the dog against the shed 100 times. At p 52:07 under cross-examination on that issue WE said, "I'm not sure because I wasn't counting how many times so I guessed at 100". I note the complainant gave evidence to the effect that it was no less than 25 times. On either version the appellant hit the dog against the shed multiple times. The accounts by the complainant and WE are very consistent. It defies experience, logic and common sense that a 6 year old child could be coached with a false account and continue that account in two interviews, in evidence in chief and under cross-examination.
At question 186 of MFI 5 WE was asked, "Did you ever see daddy do any bad things to mum?" The answer was "Mmm, no". However, at p 56:37 Mr Dennis SC asked, "…When the policeman asked you 'did you ever see daddy do bad things to mum' and you answered 'no'. Why did you answer 'no' when the policeman asked you?" The answer was, "Because it - I don't. I didn't see it or I didn't think that all I - well it wasn't true". When it was put to WE that he knew about the bad things because his mother had told him. He maintained that he saw it with his own eyes.
AE and KE, the mother and father of the complainant, gave evidence. The complainant's father gave an account of the appellant ringing him and saying something to the effect of, "Your fuckwit family is coming for Christmas" and further speaking to the appellant who would say derogatory things (my word not the witness') about the complainant. The complainant's father gave evidence that he told the appellant if he did not like the situation to leave. Initially the relationship between him and the appellant was good but it deteriorated. Under cross-examination it was put that the conversation about the family coming for Christmas did not occur, but the witness maintained that it did.
The complainant's mother then gave evidence. She gave an account of the complainant telling her that the appellant "was in a rage and he was - he flogged [WE]'s dog against the shed repeatedly and he didn't know how to stop and her and [WE] were just emotionally upset about it, it was a terrible experience for them" (p. 64:31 17/08/23). There was also evidence that the complainant sent her mother text messages complaining of the appellant "trashing the house". The cross-examination was to the effect that she was only aware of those things because her daughter (the complainant) told her of those things.
I will now go the evidence of Mr Vincent McGrath, the other complaint witness. Mr McGrath owned a property next to the property the appellant and the complainant occupied at Carabost. When the appellant and the complainant first bought the property Mr McGrath had cattle on agistment. He said that he became friendly with the complainant. He also got to know the appellant.
In evidence he gave an account of the complainant coming to see him one afternoon. She was in tears and "pretty shaken most the time". He went on to say (p 7 26/02/24) that "She opened up to me about being strangled, having her head shaken, you know, hands on her head." The account included being choked while in a walk-in wardrobe. Mr McGrath also gave an account of the complainant saying that the appellant had said to her words to the effect of "Well there's no marks on you so nothing happen". He went on to say that the complainant complained to him about these things, "on multiple occasions". He also received a complaint from the complainant about the occasion when it is alleged the accused had the gun and threw some bullets at her. I note that part of the evidence in respect of that is that (see page 10) "She grabbed [WE] and she ran because she was terrified and as she ran away he pegged a handful of bullets at her as they ran away". There are a series of messages exchanges between Mr McGrath and the complainant.
Mr McGrail was cross-examined. It was put to him (page 13) "But you also became a more frequent visitor for other reasons. Is that right?" He agreed. Was put to him that he was one occasion he stayed the night. He said that was not the case but agreed that in his statement it appears, "I stayed at K's house that night as she was extremely upset". He maintained he stayed there till about 1:30 am. He also agreed that he never personally witnessed any of the conduct of which the complainant spoke to him about.
I now go to the evidence of the appellant. He maintained that the relationship between him and the complainant commenced in 2016 and it was an "off and on again" relationship. He maintained that he left the relationship in 2018 when the complainant was "threatening various things". He has not been to the property since he left on 11 December 2022. The appellant gave evidence on 26 February 2024 and he had seen the child WE once since the separation.
The evidence continued (page 60) that as a result of being charged the appellant had his guns taken from him and his Firearms Licence suspended. He said he was a keen hunter.
Mr Dennis SC then took the appellant to each of the alleged incidents. The appellant denied tackling the complainant. He maintained the injury that the complainant spoke about was as a result of "horse riding or something, I assume, but nothing to do with anything that I can remember." The appellant denied spitting in the complainant's face while she was on the ride on lawn mower he denied ever spitting at the complainant.
At p 61 (26/02/24) the appellant was taken to the incident relating to the dog Salt. He said that he and WE had been raising chickens together and it was something that they "loved" to do. The appellant's version continued that he was inside and noticed from the window that the dog was "into the chooks again". He went out and yelled at the dog. He said there were a couple of dead chickens and feathers strewn across the yard. The account continued that he saw the dog had a chicken in its mouth. He maintained that the dog would not listen to any command and he kicked the dog to get it away from him and the chicken. He also maintained that dog "came at me again".
The account continued that he was eventually able to separate the chicken from the dog. He said that dog took a bit of a hard hit, and it got the message to leave. He said he went to check for damage and "it was bad". He maintained he kicked at the dog because he had his hands full with the chicken.
The evidence continued that on later examination the dog had broken its leg, he was not sure whether it was from the kick or the way it landed, but he assumed it was from the kick.
When asked what if anything he did about the dog's broken leg he said (page 63) that he spoke to KE (the complainant) about the dog. It was late and it was decided that as they were going to Wagga the next day they would see what they could do there. He maintained that could not afford after hours fees for the vet.
The appellant gave an account of going to the Lake Road Vet (a veterinary practice in Lake Albert Road Wagga Wagga) and as it was during the COVID periods people were distancing and waiting outside. They gave four options namely to "pin and plate", amputation, they could euthanise the dog or they could euthanise it themselves. The effect of his evidence was it was agreed between the two of them that they would euthanise the dog and that is what occurred.
I observe that the evidence the complainant gave in re-examination is not inconsistent with the version the appellant gave about what was to happen to the dog.
The appellant denied the words and conduct relied upon by the prosecution for the charge of Intimidation. In particular he denied using the words to the effect of "Shut the fuck up or I'll bury you under the ground". He admitted to tearing up two photographs.
Counsel for the appellant then took him to Sequence 3, a charge of Common Assault. The allegation was put to the appellant that he went to the walk-in wardrobe and grabbed the complainant with his hands and shook her head. The appellant maintained that that was false, that they had verbal argument but there was never anything physical like that.
The evidence then went to sequence 16, a further charge of Common Assault. The appellant acknowledged that he threatened self-harm but did not threaten harm to the complainant. He maintained he did not threaten harm to anyone that day nor did he inflict harm on anyone that day. He denied grabbing the complainant around the time of the recording.
Mr Dennis SC then asked the appellant about the events relied upon for sequence 9, a charge of Sexual Touching. This was in the context of the family having been to a place "Gone Barny" for lunch. The allegation of rubbing the complainant to the vagina on the outside of clothing in the presence of the son was put to the appellant and he said, "No I wouldn't have done that in front of [WE]. I've never done anything without consent, with [KE]."
The appellant was then briefly taken to the allegation of sexual touching where the prosecution relied on grabbing of the breasts. The appellant maintained that he had never touched the complainant's breasts without her consent.
When asked about the alleged conduct relating to sequence 13, i.e. Intimidation (waving the gun around, throwing bullets) the appellant said no incident like that occurred. Further he said he was responsible gun owner and he would not do something as silly as that.
Senior Counsel also took the appellant to the allegations relating to the remaining sequences, that is (as they were at the time of the hearing) sequences 8 and 2 and sequences 7 and 1 relating to allegations of choking. He maintained no incident like that ever happened.
The appellant did say he had cameras on the property, but that was because there was a lot of valuable machinery and equipment in the sheds and they were surrounded by forest. He went on to say that they'd have problems with theft and that rural crime is a big issue. Cameras were portable and he did move them from time to time. He maintained that the complainant knew where the cameras were.
Further on this issue, the appellant said that he worked on the mines seven days on seven days off. The effect of his evidence was that frequently but not "religiously" he would check the cameras when he came back to the property after working on the mine. He maintained the cameras had to be manually checked, batteries reset and if there had been any sort of unusual activity he would "have a look or whatnot". The appellant denied specifically monitoring the cameras to see what the complainant was doing.
The appellant maintained that he did question the complainant about people coming and going. On one occasion that was in relation to Mr McGrath. The appellant maintained it was an argument with the complainant about that and he did question the nature of the complainant's relationship with Mr McGrath but denied being violent in the course of that argument.
So far as Ms Dunlop saying that she was able to see into the yard at the premises at Kooringal, he maintained in effect that she would not have been able to see as there was a privacy screen.
The appellant was then cross-examined. He conceded there was some volatility in his relationship with the complainant and that they would argue. When asked whether they would fight he said "I wouldn't say fight. We'd argue." The prosecutor asked the appellant about the evidence that Ms Dunlop gave about hearing arguments. He maintained he kept quite calm, that he didn't raise his voice but that was not to say that the complainant wasn't yelling.
The appellant believed that the complainant was recording him. He conceded that he probably asked her if she was recording but disagreed with the proposition that he demanded to see her phone.
In the course of the cross examination (page 72) the appellant was shown Exhibit 17, the photograph of the injuries to the complainant's forearm. The appellant maintained he could not remember receiving the photograph and message. He went on to say he could not recall the response to the message but disagreed that he was the one who caused the injuries depicted. He maintained that he never asked for the complainant's phone and maintained there was no tackle.
So far as the allegation concerning the spitting (sequence 15) is concerned the appellant conceded that they had a ride on lawn mower in December 2021. He maintained he did not recall any occasion that the complainant used a ride on mower, however he agreed that there was an occasion when the complainant was sitting on the ride on mower. There was a discussion about the electricity bill and there was an argument over that. He disagreed with the suggestion that he took the keys from the mower and also disagreed with the suggestion that he spat in the complainant's face.
The cross-examination relating to the incident with the dog Salt commences at page 78. He agreed that WE was quite fond of the dog but he also said that they all were fond of the dog, it was the family dog. It was put to the appellant but he denied picking the dog up and hitting it against the shared on more than one occasion. This was put again to the appellant (p 81) and again denied. The account of the appellant was that the chicken that the dog had in its mouth was being mauled but not dead.
The cross examination continued that he was angry about the dead chicken but he maintained he was not angry he was "flustered by what was happening to these chooks we'd raised". He said he would have put the blame on the dog for the other dead chickens as she was caught in the act. The evidence continued that he kicked the dog with his right leg while having two hands on the chicken.
At p 81:01ff (26/02/24) the following question and answers appear: Q: You're saying that while you've got two hands on a chicken, it's got four legs on the ground, you've somehow got enough force in your leg to kick it hard enough that it's gone flying through the air and landed awkwardly is that what your version of events is? A: It wasn't planted securely, it was jumping, and in the motion, I've kicked it, yes. And then it's either landed wrong or - - Q: So the dog's midair and you've kicked it A: Well, I'm not sure exactly when everything's happened, but the dog's actions were up and down, it wasn't securely planted. … Q: I would say to you it's impossible for you to have physically got your leg onto this dog the way that you describe. You're holding onto it; it's holding onto the chicken. A: I disagree Q: Did you have the chicken up in the air? Was the dog off the ground? A: Well, the dog was lunging when of got - so I'm trying - - Q: Was that lunging or did it have hold of the chicken? A: Like, are you talking about the whole scenario? Like, it's obviously got the chicken in its mouth to begin with. I am making attempts to save the chicken, it's still going viciously, so when the kick happened I'm not sure if it's let go, and it's kicked or what's - what's actually happened.
The evidence continued that the appellant had seen the dog kill chickens. He maintained that he and the complainant discussed the veterinary costs and would likely be unaffordable.
At page 82 of the transcript it is recorded that Mr Dennis SC objected to a question by the prosecutor. The prosecutor suggested that that should be done in the absence of the accused and Mr Dennis acquiesced to that. With respect the appellant was the defendant in the proceedings before the court and should not have been absent during legal argument. For example, in a trial if an objection is taken while an accused is giving evidence although argument is heard in the absence of the jury it is certainly not heard in the absence of the accused. I accept however that the interests of the accused were being taken care of by able senior counsel. I note the learned magistrate asked the appellant (or the accused as he then was) to leave the room again little later (page 87).
Later in the cross examination (page 84) the appellant said he did not have much control of what happened. He maintained he yelled at the dog and picked up the chicken to try and remove it from the situation.
The prosecutor put directly to the appellant (page 85) that he refused to take the dog to the vet because he did not want anyone to know that he had "flogged it up the side of a shed". The appellant said "I disagree. I didn't want to cause the dog any undue trauma or stress." The evidence at that point and earlier in the cross examination was to the effect that it was a hot day and to carry the dog to Wagga would have caused further trauma and stress to the dog.
The appellant disagreed with the suggestion that the complainant and WE were present when the dog was injured. When asked, "You're saying they weren't there?" Appellant answered "Well it happened - I'm not sure if they came around the corner behind me or not. I don't recall them being there at the time of the actual incident". However the appellant did recall WE being upset over the dog being injured.
Further on the issue of the dog, the appellant was taken in cross-examination to text messages. At p 86:35 the appellant was asked "Then flipping over the page, the second page of that exhibit, it says, 'Another two. Bloody sick of it. Take them back to Jugiong like I asked you two weeks ago. [WE] and I wouldn't be left heartbroken if they weren't still here spreading disease and if you weren't such a psychopath'. Agree with that?" The appellant agreed that that was the message, that he did not recall responding to it. In the circumstances, noting the very strongly worded message and in particular the use of the word "psychopath", it occurs to me that it is very strange indeed that there was no answer to that message.
The cross examination then moved to the next allegation, namely, sequence 12, a charge of intimidation - the threat to bury the complainant under the ground. The appellant recalled the complainant being upset over the death of the dog. He disagreed that he called the complainant "fuckhead" and he denied that he told her to "stop it". He disagreed that he was angry with her and disagreed that he made a threat as alleged.
The appellant was asked a number of questions about the photographs. He maintained that he had only damaged two photographs.
Following that area of cross-examination, the appellant was taken to sequence 3, (Common Assault - grabbing head and shaking it). The appellant agreed that there was a walk-in wardrobe at the property at Carabost. The appellant did not recall an argument in the walk-in wardrobe. He conceded that they may have had an argument, however he denied the allegation of placing his hand on her head and shaking the complainant's head. He maintained he had never been physically violent with the complainant.
It was put to the appellant (p 96) that there were frequent arguments at the property at Carabost. He maintained that there were occasional arguments. He agreed with the proposition that in 2018 he went to the police and said that he was fearful that the complainant would make false allegations against him. In this regard I note that exhibits A and B before the magistrate are copies of the relevant COPS entries of the appellant making that report to the police in 2018 and 2019. The appellant maintained that the complainant was threatening to take custody of WE and that she was not going to split up the assets fairly. It would appear from the cross examination at pages 103-104 (27/2/24) that during the separation in 2019, the appellant considered that the relationship between him and the complainant was not continuing. He said they were living separately but still communicating and "somewhat in a relationship".
The argument during which it is alleged that the Common Assault (sequence 16) occurred is recorded and is Exhibit 20 before the magistrate. The appellant maintained that he could not recall the argument but that he had listened to the recording. It was put to him that he and the complainant were discussing the complainant spending too much time with Mr McGrath but he maintained he did not recall. The appellant disagreed with the suggestion that he threatened to kill himself in front of WE. He agreed he said in the course of the argument "You will get it, baby, keep pushing it, keep pushing it, huh". The appellant maintained he was threatening.
Further on this issue the appellant conceded the words "You'll fucking get it, [KE]" on the recording. He maintains he was not threatening the complainant. The agreed he was angry and upset during the argument.
There was an exchange between bench and bar table with the prosecutor maintaining that the appellant was giving non-responsive answers. It is tolerably plain from the transcript there was some degree of tension of the bar table. With respect to the prosecutor, on occasion the appellant would be cut off before he had finished his answer.
After that exchange, the cross examination so far as the content of the recording in Exhibit 20 continued. The appellant maintained he did not realise it was being recorded. He did not recall what was the lead up to the argument. The appellant admitted that the complainant said words "get off me".
As I understand the allegation it was and is the prosecution case that at about the time complainant said those words "get off me" the appellant had his hands over the ears of the complainant. It is curious" the words "get off me" are used in circumstances where the appellant is alleged to have had his hands to the side complainant's head. However later in the cross examination (page 122) it is conceded that the complainant also said "Let go of me" It was plain enough that the appellant continued to deny what was alleged in respect of this matter. Also (page 122) the appellant was asked, "You're saying you never physically touched [KE] during this incident at all?" The appellant agreed with that suggestion.
The cross examination then moved to the subject of the cameras that the appellant had on the property. The appellant continued to maintain that they were there to protect the assets on the property. He also said to the prosecutor that he only ever looked for suspect things, things out of the ordinary and the day-to-day stuff was just wiped. It was also put to the appellant but he denied that he was upset that a person Ben (the farrier) were spending too much time of the property.
The prosecutor then asked a number of questions relating to sequence 9, the allegation of sexual touching. Essentially the prosecution case was put to the appellant he denied the allegations. Likewise the allegations in respect of the other charge of sexual touching the appellant disagreed with what was put to him.
When asked about sequence 13 (Intimidation - waving gun, throwing bullets) the appellant said he could not place 17 June 2022 in his mind. He disagreed with the suggestion that he was stomping around the house angry and disagreed with the suggestion that he went to the walk-in wardrobe. He disagreed that he removed a gun and engaged in an argument. He also disagreed with the suggestion that he was holding some bullets in his hand and he likewise denied a suggestion that he threw any bullets at the complainant.
The cross-examination then moved to the allegations of choking that were then before the court. Again, the allegations were put to the appellant. He denied putting his hands around the throat of the complainant. He likewise denied that he squeezed the complainant's neck to the point where she passed out. I did not understand that that was the evidence of the complainant. He denied saying, "You've got no marks so it never happened".
The appellant was then taken back to when he and the complainant were living at Kooringal. He denied the suggestions that he called the complainant a "fucking cunt" or a "dumb bitch". He also denied pushing the complainant in the course of an argument.

Consideration

This is not a court of error as such and it is not necessary to go through and deal with each of the findings of the Magistrate, although I will be going to some of the reasons.
Initially I go to sequences 7 and 8, which were charges of Intentionally Choke brought contrary to s 37 of the Crimes Act. The prosecutor conceded that those charges could not be made out. The Prosecutor referred to the decision of GS v R; Director of Public Prosecutions (NSW) v GS [2022] NSWCCA 65. That decision of the Court of Criminal Appeal was handed down on 1 April 2022. The allegations of choking that were before the Local Court are alleged to have occurred in September and October 2022, that is, several months after the decision was handed down.
In GS the Court of Criminal Appeal unusually made a declaration as to the meaning of words within the Crimes Act. At [19] Payne JA (Rothman & Harrison JJ agreeing) said: "The terms 'chokes', 'suffocates' and 'strangles' are not defined in the Crimes Act. There is no appellate authority in NSW that considers the proper construction of the phrase 'intentionally chokes".
His Honour went on to say at [47]: "Section 37(1A) is a broadly drafted offence provision that covers intentionally choking, strangling and suffocating a person. The critical matter of context in the NSW Crimes Act, which makes it quite different from the ACT and Queensland Acts relied upon by GS, is the contrast with s 37(1) and s 37(2). Those sub-sections create offences that focus on the consequences of the acts of choking, strangulation or suffocation. Section 37(1A) was added after ss 37(1) and (2) to address a lacuna in the law. The context indicates that s 37(1A) deals with conduct encompassing something less than choking which fits within ss 37(1) and (2)."
Then at [63]-[64] of the decision Payne JA says: "Despite the "broad range of conduct" intended to be prohibited by s 37(1A), I am unable to conclude that the Crown's contention that any manual pressure on the neck, no matter how slight, and no matter where on the neck it is applied, may amount to "intentional choking". In particular, intentionally to place a hand on the back of a person's neck, in a way which is incapable of affecting the breath of the person or the flow of blood to or from their head, cannot properly be described as being to "intentionally choke" the person. The legislative choice in enacting s 37(1A) specifically to disconnect choking from the consequences of that choking was, in context, a choice not to require proof of injury or any other outcome lasting after or arising as a result of the act of choking. Nevertheless, the conduct prohibited must still be capable of being described as "intentional choking". The requirement to prove conduct capable of affecting the breath or blood flow to or from the head while the "choking" is taking place is consistent with the language used in its statutory context. [64] A practical consequence of the construction of s 37(1A) that I prefer is that it would be prudent for the Crown to call medical evidence in a case involving s 37(1A) so as to address the question of whether pressure applied to a victim's neck was capable of affecting the breath of the person or the flow of blood to or from the head. This is because it may be that only very slight pressure being applied to some areas of the neck of a victim may be capable of affecting the breath or the flow of blood to or from the head. This would be consistent with the statutory purpose of prohibiting controlling behaviour by domestic or family violence offenders by prohibiting the placing of pressure on the neck with the threat of applying additional pressure if the victim does not comply. To be clear, however, simply to place any slight pressure on the neck, in a way not capable of affecting the breath or the flow of blood to or from the head of the victim, even if accompanied by a threat to apply further pressure in the event of non-compliance, does not amount to intentional choking within the meaning of s 37(1A)."
Given the above, it is perhaps a little surprising that the prosecutor conceded the Intentionally Choke charges. It occurs to me that the word "capable" is very significant.
Further, I note that the prosecutor also conceded that there was insufficient evidence for the tribunal to find beyond reasonable doubt that the appellant could have commit the offence of Sexual Touching where is was alleged that the appellant was touching the genital area of the complainant on the outside of clothing without the complainant's consent. Given that the complainant was able to place it in the context of the family having lunch at "Gone Barny" I am also more than slightly puzzled as to the concession made by the prosecutor.
The learned Magistrate returned verdicts of not guilty in respect of sequences 5, 12 and 13, being respectively charges of Fail to Provide Veterinary Treatment, Intimidation and a further charge of Intimidation.
To my mind, the reasons for the acquittal in respect of sequence 13 remain somewhat obscure. The complainant gave evidence that the appellant was in a rage, he deliberately went to the gun safe in the walk-in wardrobe, obtained the firearm and was holding it in the presence of the complainant and the child. According to the complainant the appellant also had a packet of bullets. The complainant maintained that he threw the bullets. There was a complaint to Brodie Finnigan about this incident. The Magistrate appeared to have put considerable weight on the fact that the complaint did not include the throwing of the bullets.
The child WE also gave an account of this incident, including that the appellant had the firearm and that he threw the bullets. The account was quite consistent with the account given by the complainant.
The Magistrate of course had the benefit of seeing all of the witnesses give evidence. It is not always easy to get a feel for the manner of a witness giving evidence from a transcript. The learned Magistrate in her reasons (p 22 26/03/24) said: "In evidence the complainant could not recall the nature of the threat. There is no mention of the threat or throwing the bullets in the message to Brodie, just that he had a gun. Given the lack of certainty about the actual threat made, the throwing of the bullets alone would not meet the elements of the charge". It occurs to me that given all of the circumstances, including the appellant deliberately going to a gun safe, obtaining a firearm and a packet of bullets, waving that firearm around in the presence of the complainant and the child noting that the appellant was in a rage the threat is somewhat obvious. In the circumstances it was not necessary to make out the offence that there be an oral threat.
The appellant denied the conduct and maintained that he was a responsible gun owner. While there is some uncertainty about the threat that was made, I am of the opinion that the evidence that the appellant was in a rage, that he deliberately went to the gun safe, obtained the firearm and was holding it and a packet of bullets in the vicinity of the complainant and the child WE would be sufficient to make out a charge of Intimidation, without there being an oral threat. I note the child WE gave an account quite similar to that of the complainant. There was also the tendency evidence. Had there been a conviction recorded in respect of this matter it is highly likely that that conviction would have been confirmed.
I will now go to the remaining matters where the learned Magistrate did record convictions. I have already acknowledged the learned Magistrate had the significant benefit of seeing and hearing the various witnesses including the complainant and the appellant in the witness box. Conformably with the decision in Charara v R from which I extracted in the early part of these reasons I should be slow to reject the findings of credit made by the Magistrate who as I have just said, had the benefit of seeing and hearing the various witnesses.
The learned Magistrate said of the appellant (p 12, 26/03/24): "For the most part, the defendant's evidence was to the effect that the events alleged did not occur. He was evasive and somewhat non-responsive in his evidence. It was ultimately not in dispute that the parties lived apart from periods in 2018, 2019 and 2022. The defence referred to these pauses. The defendant kept going around in circles as to the nature of their relationship during these periods. His answers were fixated on what the complainant was doing at the time rather that his views as to the nature of the relationship which is what the Crown was seeking. There was some significant inconsistencies in his evidence including he asserted he never moved the cameras around without telling her, and yet, on the recording, they were initially placed without her knowledge, he denied using the cameras to monitor what she was doing then admitted to questioning her about McGrath and her farrier being at the house while he was away."
While I accept that there were issues with the credit of the appellant to my mind there were issues with the complainant's credit as well. For example, it beggars belief that a six year child would decide of his own volition to change his name without any suggestion whatsoever from his mother. The answers by the complainant to Mr Dennis SC at the end of the cross-examination, previously extracted in these reasons are telling. Also there is the issue of the complainant's evidence about going to the vet. The concessions she made in re-examination are not insignificant. In respect of the issue of taking Salt the dog to the vet it occurs to me that ultimately there is not a great deal of difference in the version of the complainant and the appellant. The complainant was obviously reluctant to admit that she had a hair appointment in Wagga Wagga the day after the incident with the dog.
Further on the issue of the complainant's credit there were a not insignificant number of unresponsive and gratuitous comments to which I have earlier referred. An obvious example that comes to mind is the one to the effect that the appellant liked killing.
Specifically I go to sequence 14, the charge of Commit Aggravated Cruelty to an Animal. The prosecution case is that the appellant in a fit of temper over seeing dead chickens picked up the dog by the collar and struck it against the wall of shed multiple times. The child WE was present. The dog Salt was WE's pet.
The complainant gave a compelling account of what occurred. At pp 15-17 of 18/08/23 the complainant gave an account of the appellant being in a rage and "he picked up Salt by the collar and he just started flogging her against the shed, just over and over again". She went on to describe the appellant have a "horrible look on his face, stomping like".
At p 17:22 the following appears: A: Well he went into - in my opinion of a rage is out of control, there's no stopping him, you know there was not stopping him, he was yelling on top of his voice, flogging the dog against the shed, [WE] was bawling his eyes out, I was screaming at him begging him to stop and he would not stop
The complainant went on to say that WE was there watching. At p 18:01 the following appears: A: The only thing I can remember hearing the whole experience is [WE] crying. I was screaming, I was yelling at him begging him to stop, he was in a rage and just yelling, I don't know what he was yelling he was yelling and the one thing that will never leave my mind is the yelp of the dog…"
When asked how many times the appellant hit the dog against the shed the complainant said (p 18:19) "Oh, I wasn't counting, like if it was just three or four times I'd be able to say, sorry or four times, it was a lot of times. I don't think I would be exaggerating to say 25, again I wasn't counting it was - it wasn't like two, three or four times like it wasn't a number of times that you could count, it was - it was extreme".
I found the complainant's evidence in relation to sequence 14 about not forgetting the yelp of the dog and the number of times that the appellant struck the dog against the shed to be utterly compelling. The evidence in this regard to my mind had a real ring of truth. The evidence does not enable me to find beyond reasonable doubt the number of times the appellant struck the dog against the wall of the shed beyond a finding "multiple times".
When asked a little later what happened, the complainant gave an account of the appellant throwing the dog on the ground and the dog's right leg was "just hanging off her, like she couldn't touch the ground with it, it was just like, fully dislocated just hanging off her".
Earlier in these reasons I set out the extracts from WE's interview about the incident with Salt the dog. As I earlier observed the version given by the complainant and WE are very similar indeed. Further, as I earlier observed it beggars belief that a 6 year old child could be coached to give the account that he did, not only to the police but to maintain that account under cross-examination.
Further, even on the appellant's own account it is difficult in the extreme to perceive how the dog sustained such a significant injury. Given this, taken with the account of the complainant and WE I reject the evidence of the appellant on this sequence.
I note, as did the learned Magistrate, that the charge avers "aggravated cruelty". For that the tribunal must find to the criminal standard that the appellant's conduct resulted in the "death, deformity or serious disablement of the animal".
Taking into account all of the warnings and directions, and allowing for the very considerable circumspection in relation to the evidence of WE, I am satisfied beyond reasonable doubt of the guilt of the accused in respect of sequence 14.
Regarding sequence 14 I am constrained to observe that I regard it as a particularly serious example of that offence. The presence of the child is an aggravating factor. I am further constrained to comment that given what the learned Magistrate and now this court has found his conduct to be of engaging in that conduct in the presence of WE, the dog being WE's pet, the appellant should engage in some serious introspection.
Day in and day out in matters involving multiple charges juries are directed that they must consider each charge separately and that separate verdicts in respect of each matter will need to be returned. So it is for me in this matter as the tribunal of fact.
I have read and re-read the evidence of all of the witnesses. I have set out the various warning and directions earlier in these reasons. I acknowledge that I did not have the advantage of seeing and hearing the witnesses in the witness box as did the learned Magistrate. I have considered the not insubstantial body of complaint evidence.
Drawing on now 43 years of experience in the criminal law and almost 20 years as a judicial officer I note that persons charged of conduct such as the appellant can rarely do much beyond deny the conduct and cross-examine on what might appear to be peripheral issues. In evidence in chief an accused person can do little more than deny the allegations as the appellant did in this matter. Likewise, under cross-examination an accused person can do little more than continue with the denials. The evidence in chief of an accused is rarely of any significant length as the evidence is almost invariably a denial of the allegations. Any determination of credit of an accused is again, almost invariably made with the cross-examination. Even the cross-examination is rarely much beyond a continuation of denials with the prosecution case being put to the accused.
After close and careful consideration of the evidence I find myself quite unable to reject the evidence of the complainant. Likewise, despite some reservations noting the credit findings of the learned Magistrate apart from Sequence 14 I am not prepared to outright reject the evidence of the appellant.
Be that as it may, in all of the circumstances, I entertain the gravest of suspicion about the guilt of the accused. But even the gravest of suspicion can never be a substitute for beyond reasonable doubt.
Noting that 'beyond reasonable doubt' is the highest standard of proof known to the law and on an appropriately strict application of the principles enunciated in Liberato v The Queen and Markuleski v R the appellant is entitled to an acquittal in respect of sequences 11, 15, 3, 16, 2 and 1.

Orders

In respect of sequence 14 the appeal is dismissed, and the conviction confirmed. I also confirm the order of the learned Magistrate that the appellant be disqualified from owning an animal for a period of two years. That order should date from when it was imposed by the Local Court.
In respect of sequence 11 I uphold the appeal and set aside the conviction.
In respect of sequence 15 I uphold the appeal and set aside the conviction.
In respect of sequence 16 I uphold the appeal and set aside the conviction.
In respect of sequence 3 I uphold the appeal and set aside the conviction.
In respect of sequence 2 I uphold the conviction and set aside the conviction.
In respect of sequence 1 I uphold the conviction and set aside the conviction.

Amendments 27 November 2024 - Anonymised 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: 27 November 2024

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Judgment (21 paragraphs)

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Cases Cited (26)