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District Court 24 October 2019

R v Death

[2019] NSWDC 682

Assault & violenceDomestic & family violence

Citation: R v Death [2019] NSWDC 682
Court: District Court of NSW
Date: 24 October 2019
Judge(s): Grant DCJ

Background

The appellant was convicted by Magistrate Brender in the Local Court on 11 September 2019 of assault occasioning actual bodily harm in a domestic violence context, contrary to s 59(1) of the Crimes Act 1900. The conviction arose from an alleged incident on the night of 20 February 2019 at the appellant's home. The complainant alleged that, after a dispute over her keys, the appellant choked her and then repeatedly struck her with a shovel for approximately 30 minutes.

The prosecution case rested entirely on the complainant's evidence, which was given partly through a domestic violence evidence-in-chief (DVEC) video recording and partly through further oral evidence and cross-examination. The appellant gave evidence denying any assault and maintaining that all physical contact was in self-defence or to restrain the complainant.

The appellant appealed to the District Court under s 18 of the Crimes (Appeal and Review) Act 2000, contending that the magistrate's finding of guilt was the result of factual error.

  • Whether a s 18(1) appeal from the Local Court to the District Court is a rehearing or a de novo hearing, and what standard of review applies
  • Whether the complainant's evidence was sufficiently reliable and consistent to support a finding of guilt beyond reasonable doubt
  • Whether the injuries sustained by the complainant were consistent with her account or with the appellant's account, and what followed from that
  • Whether the magistrate's finding of guilt was the result of a factual error

Decision

Grant DCJ confirmed the established position that a s 18(1) appeal is a rehearing based on the transcript and exhibits from the court below, not a hearing de novo. Applying the approach set out in Fox v Percy and Dyason v Butterworth, the District Court was required to form its own view of the facts while still recognising the advantage the magistrate held in observing witnesses give oral evidence. Relevantly, because the complainant's evidence-in-chief was electronically recorded, the District Court was in effectively the same position as the magistrate in assessing that portion of her testimony.

The court identified numerous internal inconsistencies in the complainant's evidence. Her account of what she was wearing at the time of the incident differed between the DVEC and cross-examination, her explanation for removing a nightie inside the premises after smashing the door was rejected as making no sense, and her description of biting the appellant was inconsistent with both her earlier police statement and the physical evidence, as police found no bite marks on the appellant. Her claim of being struck by a large man with a shovel for 30 minutes was found to be inconsistent with the nature and extent of the injuries actually observed.

The court also noted prior conduct evidence: the complainant had previously assaulted both the appellant and a third party during a similar dispute involving her keys, accompanied by what she described as a panic attack. This history was regarded as significantly relevant to her credibility and to the central factual question of who was the aggressor on 20 February 2019.

After reviewing all of the evidence, Grant DCJ concluded that he neither disbelieved the complainant nor disbelieved the appellant. Reaching that state of uncertainty meant the prosecution had not established guilt beyond reasonable doubt. The existence of a reasonable hypothesis consistent with innocence, supported by both accounts of the physical evidence, was sufficient to require an acquittal.

Orders Made

  • The appeal is allowed
  • The appellant is found not guilty

Key Takeaways

  • A s 18(1) appeal from the Local Court to the District Court is a rehearing on the record, not a fresh hearing; the appellate court forms its own view of the facts but gives weight to the magistrate's advantage in observing witnesses.
  • Where a complainant's evidence is given by electronic recording, the appellate court on rehearing stands in effectively the same position as the court below when assessing that portion of the testimony.
  • Significant internal inconsistencies in a complainant's account, particularly across a DVEC and subsequent oral evidence, can undermine the prosecution's ability to establish guilt beyond reasonable doubt even where some injury evidence exists.
  • Prior conduct by a complainant involving similar circumstances, including violence over the same type of trigger, may be relevant not only to credit but also directly to the central factual issue of who initiated the conduct in question.
  • Where the physical injuries are equally consistent with the defendant's version of events as with the complainant's, a reasonable hypothesis consistent with innocence remains open and an acquittal is required.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 59(1)
- Crimes (Appeal and Review) Act 2000 (NSW), s 18
- Supreme Court Act (NSW), s 75A

Cases
- Charara v R [2006] NSWCCA 244
- Dyason v Butterworth [2015] NSWCA 52
- Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
- Hughes v R [2017] HCA 20