Citation: Christopher John Courtenay v R [2016] NSWDC 42
Court: District Court of NSW
Date: 5 April 2016
Judge: Judge AC Scotting
Background
The appellant and his partner were involved in a heated domestic argument at their shared unit at approximately 1.00am on 30 August 2014. The complainant alleged the appellant choked her, dragged her by the neck, punched her to the left side of the face, and physically restrained her to prevent her from leaving and to take her mobile phone. The appellant denied all of those allegations throughout the proceedings.
The appellant was charged with intentional choking under section 37(1) of the Crimes Act 1900 and assault occasioning actual bodily harm under section 59(1) of the same Act. After a hearing spanning several days in the Local Court, the magistrate acquitted him of the choking charge but convicted him of the section 59 offence. He was fined $1,000, placed on a 12-month good behaviour bond, and made subject to a final Apprehended Domestic Violence Order (ADVO).
The appellant appealed to the District Court against both the conviction and the ADVO.
Legal Issues
- Whether the prosecution had proven beyond reasonable doubt that the appellant punched the complainant four or five times to the left side of her face, causing a contusion near her left eye socket
- Whether the magistrate's reasoning and credit findings were open on the evidence, having regard to forensic expert opinion about the nature and cause of the complainant's injuries
- Whether the ADVO was warranted under sections 16 and 17 of the Crimes (Domestic and Personal Violence) Act 2007, given the District Court's fresh assessment of the facts
Decision
On appeal, the prosecution confined its case to a single particularised allegation: that the appellant punched the complainant four or five times to the left side of her face, causing a contusion near her left eye socket. Judge Scotting noted that this particularisation narrowed the case considerably from what the magistrate had considered, making the appeal's task materially different from the original proceedings.
The prosecution's case depended almost entirely on the complainant's evidence. The District Court found her evidence unreliable due to significant inconsistencies, particularly the introduction in court of a second episode of choking that did not appear in her police statement taken on the night of the incident. The expert evidence of Professor Duflou, a forensic pathologist, was central to the Court's reasoning. Professor Duflou gave evidence that four or five punches to a stationary target would likely have caused injury across a broader area than the single contusion observed, and that the contusion was consistent with the complainant falling against a wall during a struggle rather than from deliberate punching. That opinion, combined with the inconsistencies in the complainant's account, led the Court to conclude there was reasonable doubt about whether the punching occurred as alleged.
Judge Scotting set aside the conviction. While the Court accepted that the appellant had touched the complainant during the argument when she did not want him to, constituting a battery at common law, the prosecution had confined its charge to the punching allegation, which was not proven beyond reasonable doubt.
On the ADVO, the Court conducted a fresh assessment on the balance of probabilities. It found that the appellant had engaged in conduct amounting to common assault, but concluded that conduct was insufficient to warrant an order. The Court was satisfied there was no reasonable likelihood of future personal violence against the complainant, particularly given that the appellant had complied with the orders for approximately 18 months without incident.
Orders Made
- The appeal against conviction is allowed (the conviction under section 59(1) of the Crimes Act 1900 is set aside)
- The appeal against the imposition of the ADVO is allowed
- The ADVO made by the magistrate on 1 September 2015 is set aside
Key Takeaways
- A District Court hearing a conviction appeal under the Crimes (Appeal and Review) Act 2001 conducts a rehearing on the transcripts and exhibits, not a de novo trial. The appellate judge must form an independent view of the facts while acknowledging the magistrate's advantage in observing witnesses give evidence.
- Where the prosecution particularises an assault charge on appeal more narrowly than it ran the case at first instance, the appellate court's task is confined to that particularised allegation, potentially creating a materially different case from what the magistrate decided.
- Expert forensic pathology evidence about the nature, size, and likely cause of an injury can be sufficient, combined with other credibility concerns, to raise reasonable doubt even where a magistrate convicted at first instance.
- Significant inconsistencies between a complainant's police statement and their oral evidence in court, particularly where new allegations are introduced only at the hearing, can justify rejection of that evidence in its entirety.
- Under sections 16 and 17 of the Crimes (Domestic and Personal Violence) Act 2007, proof that conduct amounted to a personal violence offence does not automatically warrant an ADVO. A court must separately assess whether the making of an order is necessary to protect the person and whether there is a reasonable likelihood of future offending.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW) ss 37(1), 59(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 9
- Crimes (Appeal and Review) Act 2001 (NSW) ss 16, 17, 18(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 16, 17, 18, 84
Cases
- Gianoutsas v Glykis [2006] NSWCCA 137
- Charara v R [2006] NSWCCA 244
- Fox v Percy (2003) 214 CLR 118
- M v R (1994) 181 CLR 487
- R v Markuleski (2001) 52 NSWLR 82