Citation: Musabwasoni v R [2015] NSWDC 243
Court: District Court of New South Wales
Date: 27 February 2015
Judge: Judge AC Scotting
Background
The appellant was convicted by a magistrate at Burwood Local Court on 24 September 2014 on two counts of assault occasioning actual bodily harm and one count of stalking or intimidating with intent to cause fear. The complainant was her husband, and the couple, though separated since approximately 14 February 2014, continued living in the matrimonial home. Family Court proceedings had been commenced by the appellant in late April 2014.
The prosecution alleged that on 21 April 2014, the appellant struck the complainant with a coffee mug and then with a skateboard, causing injury. A separate incident on 5 May 2014 was alleged to have involved the appellant holding a knife and making a threat to kill the complainant. Following his police statement on 5 May 2014, the appellant was arrested and exercised her right to silence.
Following conviction on all three charges, the magistrate placed the appellant on a 12-month bond under section 9 of the Crimes (Sentencing Procedure) Act 1999 and made an Apprehended Domestic Violence Order (ADVO) for 12 months on standard conditions. The appellant appealed to the District Court against both the convictions and the ADVO.
Legal Issues
- Whether the evidence was sufficient to sustain convictions beyond reasonable doubt for two counts of assault occasioning actual bodily harm
- Whether the evidence was sufficient to sustain a conviction beyond reasonable doubt for stalking or intimidating with intent to cause fear under section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007
- Whether the ADVO should stand, given that its basis was the convictions for personal violence offences
- What standard of proof applied to the ADVO, and whether the requirements of section 16 of the Crimes (Domestic and Personal Violence) Act 2007 were satisfied on the balance of probabilities
Decision
The District Court conducted a rehearing on the certified transcripts of evidence, in accordance with section 18(1) of the Crimes (Appeal and Review) Act 2001. The court applied the principle that, while it was required to form its own view of the facts, it was to recognise the advantage the magistrate had in seeing and hearing witnesses. However, the prosecution conceded that the magistrate made no findings as to the credit or demeanour of the witnesses, which removed a significant constraint on the appellate court's ability to reassess the evidence independently.
On the assault charges (sequences 1 and 2), the court found the complainant's evidence to be internally inconsistent, particularly regarding the injuries he claimed to have suffered. The court preferred the appellant's account that the injuries occurred during a gardening incident involving tree branches near the pool. On that basis, the court concluded that the complainant had given a false account and that his evidence could be rejected as a whole. The court was not satisfied beyond reasonable doubt that the assaults occurred.
On the stalking or intimidating charge (sequence 3), the court similarly was not satisfied beyond reasonable doubt that the alleged words ("one day Robert I can kill you") were actually spoken by the appellant. The charge was accordingly dismissed.
With the convictions set aside, the court turned to the ADVO. Applying the civil standard of proof (balance of probabilities) as required under section 16 of the Crimes (Domestic and Personal Violence) Act 2007, the court was not satisfied that the complainant had reasonable grounds to fear that the appellant would commit a personal violence offence or engage in conduct amounting to intimidation or stalking. The ADVO was therefore also set aside.
Orders Made
- Appeal against conviction allowed
- Orders of the magistrate dated 24 September 2014 set aside
- Court Attendance Notice dismissed
- Appeal against the imposition of the Apprehended Domestic Violence Order allowed
- Order made by the magistrate on 24 September 2014 (the ADVO) set aside
Key Takeaways
- A District Court appeal against Local Court criminal convictions under the Crimes (Appeal and Review) Act 2001 is a rehearing on the transcript record, not a fresh trial, but the appellate court must still form its own view of the facts.
- Where a magistrate makes no credit or demeanour findings about witnesses, the appellate court is less constrained in preferring one account of the facts over another, even without having seen the witnesses directly.
- Significant internal inconsistencies in a complainant's evidence can be sufficient to reject that evidence entirely, and where the complainant's account is rejected as a whole, an acquittal will follow if the prosecution's case depends on that account.
- An ADVO made consequentially upon criminal convictions cannot stand automatically once those convictions are set aside; the requirements of section 16 of the Crimes (Domestic and Personal Violence) Act 2007 must be assessed afresh and independently, applying the balance of probabilities standard.
- Under section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007, proof that alleged threatening words were actually spoken remains a necessary element of the offence, even though the legislation does not require the complainant to have actually experienced fear.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 59(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 13, 16, 17, 84
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
- Crimes (Appeal and Review) Act 2001 (NSW), s 18(1)
Cases:
- Gianoutsas v Glykis [2006] NSWCCA 137
- Charara v R [2006] NSWCCA 244
- Mahmood v Western Australia (2008) 232 CLR 397
- Louzios v R (2009) 194 A Crim R 223
- Kilby v R (1973) 186 CLR 427
- Lemura v R [1998] NSWCCA 699
- Liberato v R (1985) 159 CLR 507