Citation: [2021] NSWLC 1
Court: NSW Local Court
Date: 5 October 2021
Judge: Magistrate Tsavdaridis
Background
Three defendants faced a co-accused hearing in the NSW Local Court, each charged with one count of affray under s 93C of the Crimes Act 1900 (NSW). The prosecution alleged that on 25 July 2020 the defendants attended a location, became involved in a physical fight in which weapons were produced, and caused injuries to two complainants, including scratches to the knees and lacerations to the head.
The prosecution case rested on a combination of direct and circumstantial evidence. None of the defendants gave oral evidence at the two-day hearing, but each had participated in a Record of Interview with police. In those interviews, the defendants described attending the premises to collect one of their group and gave accounts of violence directed at them by others present, including an allegedly intoxicated aggressor who brandished a knife or machete and smashed the windscreen of their vehicle. That raised a question of self-defence.
Significantly, two of the three principal complainants did not give oral evidence. Their signed police statements were tendered, but neither witness entered the witness box or submitted to cross-examination. The third principal complainant also did not give evidence.
Legal Issues
- Whether the prosecution had proved each element of affray under s 93C of the Crimes Act 1900 (NSW) beyond reasonable doubt.
- Whether, on a prosecution case relying partly on circumstantial evidence, guilt was the only rational inference available.
- How the good character of each defendant affected the assessment of propensity and the credibility of their Records of Interview.
- Whether the prosecution had sufficiently negatived self-defence to the criminal standard of beyond reasonable doubt.
- What weight, if any, should be given to police statements where the makers declined to give oral evidence and could not be cross-examined.
Decision
Magistrate Tsavdaridis directed herself in accordance with the standard cautionary directions applicable to a magistrate sitting alone as both tribunal of fact and law. Applying Fleming v The Queen (1998) 197 CLR 250, those directions carry the same force as directions to a jury. The prosecution bore the onus throughout, and no adverse inference arose from the defendants' decision not to give oral evidence.
On the circumstantial evidence limb, the Magistrate applied Shepherd v The Queen (1990) 170 CLR 573 and Chamberlain v The Queen (No 2) (1984) 153 CLR 521, requiring that guilt be not merely a rational inference but the only rational inference consistent with all the circumstances. She concluded that the evidence did not meet that standard: the prosecution's evidence was unreliable, marked by significant inconsistencies between police statements and oral testimony, and affected by the excessive alcohol consumption of both complainants and other witnesses present on the night.
The absence of oral evidence from the two tendered complainants was a significant evidentiary gap. The Magistrate noted that those witnesses chose not to stand behind their signed statements and did not submit to cross-examination, which substantially diminished the probative value of those accounts. The overall state of the evidence was described as incoherent and chaotic, with some deficiencies going to substantive matters that could not be overlooked. The evidence did not surmount the high hurdle of proof beyond reasonable doubt.
On self-defence, the Magistrate held that even if it were necessary to address the issue, the prosecution would not have been able to negative it to the required standard. The defendants' attendance at the premises, without more persuasive evidence of their conduct, was insufficient to establish the offence.
Orders Made
- A verdict of not guilty was entered in respect of each defendant.
- The charges were dismissed.
Key Takeaways
- Magistrate Tsavdaridis confirmed that all cautionary criminal trial directions, including those governing circumstantial evidence, good character, onus, and standard of proof, apply equally to a magistrate sitting alone as they do to a judge and jury trial.
- Where the prosecution relies on circumstantial evidence, guilt must be the only rational inference available on the whole of the evidence; any reasonable hypothesis consistent with innocence requires an acquittal.
- The tendering of signed police statements without the maker giving oral evidence carries a significant limitation: without cross-examination, the probative value of such accounts is substantially reduced, particularly where credibility is in issue.
- Good character operates across two limbs: a propensity limb (the defendant is presumed not inclined to commit crime) and a credibility limb. The credibility limb applied in this case to the defendants' Records of Interview, even though no oral evidence was given, following Melbourne v The Queen (1999) 198 CLR 1.
- A prosecution must affirmatively negative a self-defence claim to the criminal standard of beyond reasonable doubt; on the evidence before the Local Court, the prosecution could not do so.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 93A, 93C, 93D
Cases
- Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
- Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
- Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7
- Peacock v The Queen (1911) 13 CLR 619; [1911] HCA 66
- Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44
- Pitkin v The Queen (1995) 130 ALR 35; [1995] HCA 30
- R v Murphy (1985) 4 NSWLR 42
- Attwood v The Queen (1960) 102 CLR 353; [1960] HCA 15
- Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32
- Woolmington v DPP [1935] AC 462
- R v Manunta (1990) 54 SASR 17