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District Court 15 March 2019

R v Lumsden

[2019] NSWDC 149

Assault & violenceTheft & propertyDomestic & family violence
EXAMINATION OF COMPLAINANT

Citation: R v Lumsden [2019] NSWDC 149
Court: District Court of New South Wales
Date: 15 March 2019
Judge: Grant DCJ

Background

The appellant had been convicted in the Windsor Local Court on 14 September 2018 of two domestic violence-related offences: intentionally or recklessly damaging property (a handbag belonging to his former partner) and common assault. Both offences arose from a single incident on 18 July 2017. He was placed on a 12-month bond for each count.

The prosecution case rested almost entirely on the evidence of the complainant, the appellant's former partner. She described an altercation in the kitchen in which the appellant seized her handbag, causing her to fall against a fridge, and resulting in bruising and a scratch. The appellant's account was that he had been taunting her by holding the bag out, and that she snatched it back, breaking the strap in the process.

There was no independent evidence supporting either version, and the photographic evidence of alleged injuries was of poor quality. The magistrate convicted the appellant, and he appealed to the District Court.

  • Whether the magistrate erred in drawing a favourable credibility inference from the fact that the complainant had not been cross-examined about any inconsistency with her police statement
  • Whether the magistrate's reasoning impermissibly penalised the appellant for exercising his right to silence by declining to participate in a record of interview
  • Whether, on a proper assessment of the evidence, the prosecution had proved its case beyond reasonable doubt

Decision

Grant DCJ identified two distinct errors in the magistrate's reasoning. The first concerned the complainant's police statement, made approximately two months after the incident. Because defence counsel had not cross-examined the complainant about any inconsistency with that statement, the magistrate inferred that her evidence must have been consistent with it and used that inference to support her credibility. The District Court found this reasoning was entirely speculative: the contents of the statement were unknown, any inconsistencies in it may simply not have been pursued, and a prior consistent self-serving statement does not, in any event, enhance a witness's credibility.

The second and more significant error concerned the appellant's exercise of his right to silence. The magistrate correctly acknowledged that declining a record of interview could not be used against the appellant, but then proceeded to use that fact to compare the "freshness" of the complainant's account (given to police within two months) against the appellant's account given from the witness box fourteen months after the incident. The District Court found this reasoning directly penalised the exercise of the right to silence. It also risked shifting the onus of proof by implying the appellant needed to participate in a record of interview to establish his own credibility.

Applying the rehearing standard from Fox v Percy, and accounting for the magistrate's advantage in seeing and hearing the witnesses, the District Court nonetheless formed its own view of the facts. Given the appellant's uncontested good character, his sworn evidence, and the absence of any permissible basis for discounting that evidence beyond reasonable doubt, the court was not satisfied the prosecution had proved the charges to the required standard.

Orders Made

  • Appeal allowed
  • Convictions quashed and all Local Court orders set aside
  • Appellant found not guilty; charges dismissed

Key Takeaways

  • A prior consistent statement made by a complainant to police does not, of itself, lend credibility to that complainant's evidence, particularly where the contents of the statement were never before the court.
  • Inferring consistency between a witness's oral evidence and an unseen police statement, simply because no inconsistency was put in cross-examination, is impermissible speculation.
  • Where a magistrate correctly states the law on the right to silence but then applies reasoning that effectively disadvantages the accused for exercising that right, the conviction will be infected by error.
  • Under the rehearing standard in Fox v Percy, the District Court on appeal forms its own judgment of the facts while giving appropriate weight to the trial court's advantage in observing witnesses firsthand.
  • A defendant of good character is entitled to a direction that their character makes it less likely they committed the offence and more likely their evidence is truthful; to convict, the fact-finder must disbelieve that evidence beyond reasonable doubt.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), s 18
- Crimes Act 1900 (NSW), ss 61, 195(1)(a)
- Supreme Court Act 1970 (NSW), s 75A

Cases:
- Browne v Dunn (1893) 6 R 67 (HL)
- Charara v Queen [2006] NSWCCA 244
- Dyason v Butterworth [2015] NSWCA 52
- Fox v Percy [2003] HCA 22; (2003) 214 CLR 118