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District Court 21 July 2022

Johnson v R

[2022] NSWDC 299

Assault & violenceTheft & propertyDomestic & family violence

Citation: Johnson v R [2022] NSWDC 299
Court: District Court of New South Wales
Date: 21 July 2022
Judge(s): Scotting DCJ

Background

The appellant and his former domestic partner had been living together at a unit in Mascot. On 6 April 2021, following a series of arguments that preceded their eventual separation, the appellant returned home and a confrontation occurred. The complainant alleged that the appellant threw car keys at her, striking her on the right cheek, and later went to the balcony and deliberately broke a ceramic pot, throwing the pieces into a vacant lot next door.

The appellant was convicted in the Downing Centre Local Court of common assault (sequence 1, the keys incident) and destroying property (sequence 3, the pot). He appealed both convictions to the District Court as of right under the Crimes (Appeal and Review) Act 2001. At the Local Court hearing, the appellant had given evidence denying the allegations, but had exercised his right to silence when arrested and charged.

  • Whether the magistrate erred in drawing an adverse inference from the fact that the appellant's denial was first raised at the hearing, given that he had exercised his right to silence on arrest.
  • Whether the magistrate's finding that the appellant's conduct was "alcohol-fuelled" was open on the evidence.
  • Whether the prosecution established beyond reasonable doubt, on the circumstantial evidence, that the appellant intentionally destroyed the ceramic pot.
  • The proper approach to a s 18 appeal under the Crimes (Appeal and Review) Act 2001, including the requirement to demonstrate factual, legal, or discretionary error.

Decision

Nature of the appeal. An appeal under s 18 of the Crimes (Appeal and Review) Act 2001 is a rehearing on the certified transcripts, not a fresh trial. The District Court must form its own view of the facts while recognising the magistrate's advantage in seeing and hearing witnesses. Demonstrating error, whether factual, legal, or discretionary, is required for the appeal to succeed, though this does not reverse the prosecution's onus of proving guilt beyond reasonable doubt.

Common assault conviction (sequence 1). Scotting DCJ identified two significant errors in the magistrate's reasoning. First, the magistrate inferred that the appellant's conduct was "alcohol-fuelled," but this was not put to the appellant in cross-examination and was not advanced by the prosecutor. That finding was therefore not open on the evidence. Second, and more significantly, the magistrate repeatedly drew an adverse inference from the fact that the appellant's denial emerged for the first time at the hearing, contrasting it with the complainant's "near contemporaneous" DVEC statement. Because the appellant had exercised his right to silence on arrest, drawing that adverse inference offended s 89 of the Evidence Act 1995 and was contrary to established authority. These errors warranted intervention on the assault conviction.

Destroying property conviction (sequence 3). The prosecution case on the pot was entirely circumstantial. The complainant did not see the pot break and only heard a crack, after which the appellant told her it was an accident. Scotting DCJ found it reasonably open on the evidence that the pot broke accidentally when the appellant was moving it, noting it was too heavy to throw while full of dirt. Although the court did not accept the appellant's explanation for his actions at that time as convincing, it held that rejecting that explanation was insufficient on its own to establish the prosecution case to the criminal standard. The prosecution had not excluded the reasonable possibility that the breakage was accidental, and an acquittal on sequence 3 (renumbered in the judgment's reasoning as sequence 1 of the damage charge) was entered.

Orders Made

  • Appeal allowed in part.
  • The conviction for sequence 1 (common assault) and the penalty imposed by the magistrate are set aside.
  • The parties to be heard on the sentence appeal relating to sequence 3.

Key Takeaways

  • Under s 89 of the Evidence Act 1995, a court cannot draw an adverse inference against an accused from the fact that their denial was first raised at trial, where the accused had exercised the right to silence at the time of arrest.
  • A magistrate's finding must be open on the evidence actually led at trial. Inferences about a defendant's state, such as intoxication, that were not put to the accused in cross-examination and not advanced by the prosecutor cannot properly ground a conviction.
  • Where a prosecution case is entirely circumstantial, a conviction requires that guilt be the only rational inference open on all the evidence. A reasonable hypothesis consistent with innocence must be excluded beyond reasonable doubt.
  • Rejecting an accused's explanation for their conduct does not, by itself, establish the prosecution case. A court must set aside the accused's evidence and assess independently whether the prosecution has proven its case to the criminal standard.
  • On a s 18 District Court appeal, the appellant must demonstrate error before the appellate court intervenes, but this requirement does not shift the burden of proof away from the prosecution.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), s 18
- Evidence Act 1995 (NSW), s 89

Cases
- AG v Director of Public Prosecutions [2015] NSWCA 218
- Barca v The Queen (1975) 133 CLR 82
- Charara v R [2006] NSWCCA 244
- Gianoutsas v Glykis [2006] NSWCCA 137
- Lumney v Director of Public Prosecutions [2021] NSWCA 186
- McNab v Director of Public Prosecutions [2021] NSWCA 298
- R v Anderson [2002] NSWCCA 141
- R v Coe [2002] NSWCCA 385
- Sanchez v R (2009) 196 A Crim R 472
- The Queen v Baden-Clay (2016) 258 CLR 308