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District Court 4 November 2009

CINI, Danuta v R

[2009] NSWDC 423

Assault & violence
CRIMINAL LAW CONVICTION APPEAL ASSAULT OCCASIONING ACTUAL BODILY HARM NO EYE WITNESSES

Citation: CINI, Danuta v R [2009] NSWDC 423
Court: District Court of New South Wales
Date: 4 November 2009
Judge(s): Cogswell SC DCJ

Background

The appellant was a neighbour of the complainant, and both parties acknowledged a long history of mutual hostility. On 17 December 2008, an altercation occurred between them in a shopping centre car park at Blacktown. The complainant alleged that, after returning to her car and finding it scratched, she approached the appellant and was then grabbed and had hair pulled from her head. The appellant's account was materially different: she said she received a blow to the back of her head before turning to find the complainant, and that she only pushed the complainant away in response to continued punches.

The appellant was convicted of assault occasioning actual bodily harm under s 59(1) of the Crimes Act 1900 in Blacktown Local Court. A magistrate also made an apprehended violence order (AVO) consequent on that conviction. The appellant appealed both the conviction and the AVO to the District Court, arguing the evidence did not establish guilt beyond reasonable doubt.

  • Whether the prosecution evidence, assessed on appeal by way of rehearing, was sufficient to establish the appellant's guilt beyond reasonable doubt
  • Whether the prosecution had excluded the reasonable possibility that the appellant was acting in self-defence
  • Whether the AVO, which had been made as a consequence of the conviction, should also be set aside

Decision

The District Court conducted a fresh review of the Local Court material, including exhibits and the full transcript of evidence. There were no independent eyewitnesses to the altercation itself. The prosecution relied on the complainant's account, a police officer, and a security officer whose evidence related only to events after the fight.

The court accepted that a physical altercation plainly occurred and that both parties sustained injuries. Photographic evidence showed a patch of missing hair on the complainant's head, and a clump of hair was found on the ground. However, the court found this evidence corroborated only that a fight had taken place, not that the appellant had committed an unlawful assault. The appellant's own photographic evidence was consistent with her account of being struck first and having her glasses knocked off.

The court identified unsatisfactory aspects in the prosecution evidence. The complainant was evasive in cross-examination about whether she had physically restrained the appellant before the altercation began, eventually conceding she had tried to hold the appellant by her right arm while saying words to the effect that the appellant was going nowhere. The complainant also denied telling the security officer that the appellant had brushed her car while driving out, directly contradicting his evidence on that point.

Taken together, these deficiencies in the prosecution evidence meant the court could not be satisfied of guilt beyond reasonable doubt. The court also accepted that the prosecution had not excluded the reasonable possibility of self-defence, given the complainant's own admissions about physically restraining the appellant. Because the AVO had been made as a consequence of the conviction, it too was set aside on appeal under the applicable legislation.

Orders Made

  • The conviction for assault occasioning actual bodily harm was set aside
  • The apprehended violence order was set aside

Key Takeaways

  • A conviction will not survive appeal where the prosecution evidence contains material inconsistencies and internal contradictions that prevent satisfaction of guilt beyond reasonable doubt, even where some physical evidence of injury exists.
  • Where a complainant admits to physically restraining the accused immediately before an altercation, the prosecution bears the burden of excluding the reasonable possibility that the accused was acting in self-defence.
  • Hair found at the scene of a fight, and photographs of injuries, corroborated the fact that an altercation occurred, but the District Court found this evidence insufficient to establish the specific question of unlawful assault.
  • An AVO made as a direct consequence of a Local Court conviction falls with that conviction when set aside on appeal, pursuant to s 84 of the Crimes (Domestic and Personal Violence) Act 2007 and s 20 of the Crimes (Appeal and Review) Act 2001.
  • Evidence from parties with a long, documented history of mutual hostility carries reduced weight as independent proof, and a court must assess it with that context firmly in mind.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 59(1) (assault occasioning actual bodily harm)
- Crimes (Appeal and Review) Act 2001 (NSW), s 20(1) (determination of appeals against conviction)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 84 (appeals against apprehended violence orders)

Cases cited: No cases were cited in the judgment.