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District Court 19 March 2021

Burgess v R

[2021] NSWDC 165

Domestic & family violence

Citation: Burgess v R [2021] NSWDC 165
Court: District Court of NSW
Date: 19 March 2021
Judge: M L Williams SC DCJ

Background

The appellant was convicted in the Local Court of intimidation under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 following a two-day hearing. The charge arose from an incident at a Bowral property on 19 October 2019, where the appellant had attended for a supervised access visit with his two young children. The property was owned by his father-in-law, and a confrontation occurred between the two men at the end of the visit.

The prosecution case rested principally on the father-in-law's account of the incident. The appellant gave evidence denying that he had made any threatening or intimidating statement, characterising the exchange as a heated argument provoked by the other man. The Magistrate rejected the appellant's evidence and convicted him, describing the prosecution witnesses as impressive and the appellant's account as "changeable."

The matter came before the District Court as a rehearing on the Local Court evidence. The District Court was required to form its own view of the facts while giving appropriate weight to the Magistrate's advantage of having seen and heard the witnesses directly.

  • Whether the Magistrate correctly applied the Liberato direction, requiring consideration of whether there was any reasonable possibility that the accused's version of events could be true
  • Whether the Magistrate's reasoning on credibility was rationally founded, particularly given the approach taken to assessing witness consistency
  • Whether, on the evidence as a whole, the Crown had proved the charge beyond reasonable doubt

Decision

The District Court accepted the appellant's submission that the Magistrate failed to apply the correct legal test when rejecting the accused's evidence. Rather than asking whether the Crown had eliminated any reasonable possibility that the appellant's version was true, the Magistrate simply stated that he rejected the appellant's account and found it "changeable." The Crown conceded the direction had not been articulated but argued the rejection was sufficiently clear from the reasons as a whole. The District Court rejected that argument.

The Court also found the Magistrate's approach to assessing credibility was problematic. The Magistrate appeared to favour witnesses who stuck doggedly to their accounts and made what were characterised as appropriate concessions, and the Court described this as a perverse approach to credibility assessment. Because of these deficiencies in reasoning, the Court gave limited weight to the Magistrate's advantage of having observed the witnesses firsthand.

On the substantive question, the Court gave careful attention to the chronology of events, including text messages exchanged between the parties and the sequence of calls made to lawyers and public relations consultants before the prosecution witnesses attended the police station. The evidence of the father-in-law's daughter was also treated as carrying little weight, particularly because she first raised a specific alleged threat only in her oral evidence before the Magistrate, having omitted it from her police statement on the night of the incident.

Applying the Liberato direction as clarified by the High Court in De Silva, the District Court concluded that the Crown had not eliminated a reasonable possibility that the appellant's version of events was true. The appeal was upheld and both the conviction and sentence were set aside.

Orders Made

  • The appeal was upheld
  • The conviction imposed by the Magistrate was set aside
  • The sentence orders imposed by the Magistrate were set aside

Key Takeaways

  • The District Court confirmed that where an accused gives evidence, the tribunal of fact must be positively satisfied there is no reasonable possibility that the accused's version could be true before proceeding to conviction, in accordance with Liberato v The Queen (1985) 159 CLR 507 as clarified by De Silva v The Queen [2019] HCA 48.
  • A bare statement that an accused's evidence is rejected, without engaging with whether any reasonable possibility of truth remains, is insufficient to satisfy the Liberato direction.
  • Where a Magistrate's reasoning on credibility lacks rational foundation, the appellate court on rehearing may give only limited weight to the advantage the Magistrate had in observing witnesses give evidence.
  • Assessing credibility primarily by reference to whether a witness maintained their account consistently, without more, was characterised by the Court as a perverse approach to the evaluation of witness credit.
  • Evidence from a witness that materially expanded at trial beyond what that witness included in a contemporaneous police statement was treated as carrying little weight, particularly where the explanation for the omission was not accepted.

Legislation and Cases Referenced

Legislation
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7 and 13

Cases
- Liberato v The Queen (1985) 159 CLR 507
- De Silva v The Queen [2019] HCA 48