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District Court 23 August 2019

McKinnon v R

[2019] NSWDC 432

Assault & violenceDomestic & family violence
ASSAULT DOMESTIC VIOLENCE RELATED OFFENCES

Citation: McKinnon v R [2019] NSWDC 432
Court: District Court of New South Wales
Date: 23 August 2019
Judge(s): Mahony SC DCJ

Background

The appellant had been convicted in the Coffs Harbour Local Court on 23 April 2019 following a three-day hearing. He was convicted of four domestic violence related offences arising from an incident on 29 August 2018 involving his former partner, with whom he maintained a continuing relationship after separation.

The complainant gave evidence that she attended the appellant's home and was subjected to a prolonged physical assault, including being grabbed by the throat on multiple occasions, slapped, spat upon, and having her mobile phone damaged. She alleged the appellant then attended the hospital where she sought treatment and pressured her to give a false account of her injuries to medical staff. The following morning, the appellant attended her home and verbally abused her, prompting her to attend a police station and make a formal statement.

The appellant denied the assault, contending that the complainant had left his premises of her own accord and had injured herself by tripping. He appealed his convictions to the District Court.

  • Whether the appeal, conducted by way of re-hearing on the transcript and exhibits from the Local Court, disclosed any error in the Magistrate's reasoning or assessment of the evidence
  • Whether the Crown had proved the elements of each of the four offences beyond a reasonable doubt:
  • Assault occasioning actual bodily harm (s 59(1), Crimes Act 1900)
  • Common assault (s 61, Crimes Act 1900)
  • Stalking or intimidating (s 13(1), Crimes (Domestic and Personal Violence) Act 2007)
  • Intentionally or recklessly damaging property (s 195(1)(a), Crimes Act 1900)
  • Whether the complainant's evidence was sufficiently credible and reliable to sustain the convictions, having regard to identified inconsistencies and concessions in cross-examination

Decision

Mahony SC DCJ conducted the appeal as a re-hearing based on the transcript and exhibits, including a recorded police interview (DVEC) with the complainant. His Honour applied the principles from Charara v R [2006] NSWCCA 244 and AG v Director of Public Prosecutions (NSW) [2015] NSWCA 215, acknowledging the natural limitations of an appellate court that did not have the benefit of seeing and hearing the witnesses directly.

His Honour found the complainant's evidence to be credible and reliable in its essential respects. While acknowledging some exaggeration on her part regarding the extent of yelling and screaming during the incident, the court was otherwise satisfied that she suffered the injuries she described, in the manner she described them. The photographic evidence of bruising to her neck and damage to her phone provided corroboration of her account.

The evidence of the appellant and his witness, Ms Hoare, was assessed critically. The court found the appellant's account of the continuing relationship and his claimed lack of anger to be implausible. Ms Hoare's evidence was afforded little weight, as she had been watching television in a different part of the premises during the relevant period. The court also found that the appellant had attended the hospital specifically to intimidate the complainant and to ensure she provided a false account to medical staff.

No error was identified in the Magistrate's reasoning or analysis of the evidence. The court was satisfied beyond a reasonable doubt that the elements of all four offences had been proved.

Orders Made

  • The appeal against conviction for assault occasioning actual bodily harm (s 59(1), Crimes Act 1900) is dismissed
  • The appeal against conviction for common assault (s 61, Crimes Act 1900) is dismissed
  • The appeal against conviction for stalking/intimidating (s 13(1), Crimes (Domestic and Personal Violence) Act 2007) is dismissed
  • The appeal against conviction for intentionally or recklessly damaging property (s 195(1)(a), Crimes Act 1900) is dismissed

Key Takeaways

  • In dismissing the conviction appeal, the District Court confirmed that a re-hearing on transcript does not simply replicate the original proceeding: the appellate court must form its own view of the facts while acknowledging the Magistrate's advantage in observing witnesses firsthand.
  • Minor inconsistencies or concessions in a complainant's evidence do not necessarily undermine the overall credibility of that evidence, provided the court is satisfied the account is reliable in its essential particulars.
  • Sufficient evidence existed to establish the stalking and intimidation count where the appellant's conduct at the hospital, including pressuring the complainant to lie to medical staff, demonstrated an intent to cause fear for her safety.
  • A witness's evidence carries reduced weight where, at the relevant time, that witness was physically separated from the location of the alleged events and occupied with an unrelated activity.
  • No error was established in the Magistrate's reasoning, reinforcing that appellate courts will not readily disturb a trial court's credit findings where those findings are reasonably open on the evidence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(1), 61, 195(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)

Cases
- AG v Director of Public Prosecutions (NSW) [2015] NSWCA 215
- Charara v R [2006] NSWCCA 244
- R v Markuleski (2001) 52 NSWLR 82
- R v Murray (1987) 11 NSWLR 12