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District Court 19 May 2022

Davey v R

[2022] NSWDC 168

Assault & violence
CRIME APPEAL AND REVIEW

Citation: Davey v R [2022] NSWDC 168
Court: District Court of NSW
Date: 19 May 2022
Judge: Scotting DCJ

Background

The appellant was convicted by Magistrate Huntsman at Waverley Local Court on 17 June 2021 of three offences: intentionally suffocating a person without consent, common assault, and assault occasioning actual bodily harm. The offences arose from a physical altercation on 19 November 2020 between the appellant and his de facto partner at their shared home, against a backdrop of relationship breakdown, a recently terminated pregnancy, and allegations of infidelity.

It was common ground that a physical altercation took place. The complainant reported the incident to police approximately two hours after it occurred, providing a recorded statement. The appellant attended a police station the following day and gave his own recorded interview, acknowledging physical contact but asserting he had acted in self-defence.

A third person, Callum Everett, was present in the premises during the altercation. The complainant stated she had called out for help and that Everett had opened the bedroom door. He was not called as a witness at trial.

Legal Issues

  • Whether the magistrate engaged in impermissible reasoning when assessing the complainant's credibility
  • Whether the magistrate adequately considered the significance of the prosecution's failure to call the independent witness Callum Everett
  • Whether the prosecution proved each of the three charges beyond reasonable doubt
  • Whether the prosecution negatived the appellant's claim of self-defence on the assault occasioning actual bodily harm charge

Decision

Standard of review

An appeal under section 18 of the Crimes (Appeal and Review) Act 2001 is a rehearing on certified transcripts, not a de novo retrial, and requires the appellant to demonstrate factual, legal, or discretionary error. The District Court must give the judgment that ought to have been given at first instance, while recognising the magistrate's advantage in seeing and hearing witnesses. (at [6]-[10])

Impermissible credibility reasoning

Scotting DCJ found that the magistrate's reasons for accepting the complainant as a witness of truth were based on false logic. The magistrate treated the complainant's perceived choice not to exaggerate certain details as evidence of her credibility. The District Court held that a witness's apparent decision not to embellish cannot properly be used to bolster credit or justify accepting the account as truthful. The magistrate's reasoning also rested on an unwarranted assumption about what a person giving a false account would do, which amounted to impermissible speculation. (at [23]-[28])

Failure to consider the uncalled witness

Scotting DCJ accepted that, while the magistrate was correct to find no adverse inference could be drawn against the prosecution for not calling Everett, she was nonetheless obliged to consider whether the failure to call him should generate a reasonable doubt as to the appellant's guilt. The magistrate did not undertake that analysis. Police efforts to contact Everett had been minimal: a single officer called a number a few times, with no attempt to locate an address, visit him, or issue a subpoena. (at [30]-[31])

Suffocation charge

The District Court was not satisfied beyond reasonable doubt that the appellant pinched the complainant's nose while covering her mouth, noting that the nose-pinching allegation did not appear in her recorded statement and only emerged in cross-examination. Without that finding, it could not be established that her breathing was actually impeded, and the requisite intent or recklessness also could not be proved. (at [36]-[37])

Common assault charge

The complainant's account of the assaults was elicited largely through leading questions from the attending officer, and she responded vaguely or with uncertainty on key details. The District Court was not satisfied to the criminal standard on the evidence supporting this charge. (at [38])

Assault occasioning actual bodily harm and self-defence

The complainant gave no convincing account of how the altercation began or its chronology. The District Court found the injuries were largely consistent with either party's version of events, and was not satisfied beyond reasonable doubt that the prosecution had proved the charge or negated self-defence. (at [39])

Orders Made

  • Appeal allowed
  • The convictions and penalties imposed by the magistrate are set aside
  • The associated Apprehended Domestic Order (ADO) is set aside

Key Takeaways

  • A magistrate's credibility finding will be set aside where it rests on impermissible reasoning. Using a complainant's perceived choice not to exaggerate as a positive basis for accepting their evidence as truthful is not a permissible approach. (at [28])

  • Where an independent witness was present during the events in question and was not called by the prosecution, the tribunal of fact is not limited to asking whether an adverse inference arises. It must also consider whether the failure to call that witness should generate a reasonable doubt about the accused's guilt, following the approach in Mahmood v Western Australia (2008) 232 CLR 397. (at [31])

  • Minimal police efforts to contact a potential witness, such as phoning a number a few times without attempting to locate an address or issue a subpoena, may be insufficient to excuse the prosecution's failure to call that witness. (at [31])

  • The District Court confirmed that demonstration of error under section 18 of the Crimes (Appeal and Review) Act 2001 does not reverse the prosecution's onus of establishing guilt beyond reasonable doubt. (at [12])

  • Where a complainant's account is substantially elicited through leading questions and is characterised by vagueness, uncertainty, or a lack of discernible chronology, that account may be insufficient to ground a finding of guilt to the criminal standard. (at [34]-[35], [38])

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Appeal and Review) Act 2001

Cases
- AG v Director of Public Prosecutions [2015] NSWCA 218
- Charara v R [2006] NSWCCA 244
- Fox v Percy (2003) 214 CLR 118
- Gianoutsas v Glykis [2006] NSWCCA 137
- Lumney v Director of Public Prosecutions [2021] NSWCA 186
- M v R (1994) 181 CLR 487
- Mahmood v Western Australia (2008) 232 CLR 397
- McNab v Director of Public Prosecutions [2021] NSWCA 298
- R v Conlon (1993) 69 A Crim R 92
- R v Katarzynski [2002] NSWCCA 613
- R v Viro (1978) 141 CLR 88