AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 18 May 2023

Furcic v R

[2023] NSWDC 397

Assault & violence
CRIME APPEALS CONVICTION APPEAL ASSAULT OFFENCE ONUS OF PROOF

Citation: Furcic v R [2023] NSWDC 397
Court: District Court of NSW
Date: 18 May 2023
Judge: Neilson DCJ

Background

The appellant was convicted in the Local Court at Sutherland on 1 September 2022 of assault occasioning actual bodily harm. The alleged assault occurred on 7 September 2021, at a home the appellant shared with the complainant. The two had been in a de facto relationship since 2003, had two young children together, and were living in the same residence while separated and engaged in contested family law proceedings.

The relationship had been acrimonious. In the period before the alleged assault, the complainant had made several complaints to police about the appellant, none of which resulted in charges or restraining orders. The night of the alleged assault was preceded by a verbal dispute, captured on a recording made by the appellant on his mobile phone.

The magistrate delivered 30 pages of reasons and convicted the appellant. A final apprehended domestic violence order (ADVO) was also made. The appellant appealed to the District Court on conviction grounds.

  • Whether the Local Court correctly applied the Liberato direction, which governs how a fact-finder must approach a case where the accused gives evidence that contradicts the complainant
  • Whether, applying the correct standard, the Crown had proved the charge beyond reasonable doubt
  • Whether the conviction was sustainable given the inconsistencies in the complainant's evidence and conduct

Decision

Neilson DCJ found that the magistrate had not properly applied the Liberato direction. That direction, derived from Liberato v The Queen (1985) 159 CLR 507, requires a fact-finder to acquit an accused if the accused's evidence raises a reasonable doubt, even where the fact-finder does not positively believe the accused. It is not sufficient to simply prefer the complainant's account; the question is whether the accused's evidence, or the evidence as a whole, leaves open a reasonable doubt.

His Honour identified significant inconsistencies in the complainant's conduct and evidence. Despite having reported a possible sexual assault of her daughters by the appellant, she subsequently left the children alone in his care for extended periods, including during the COVID-19 pandemic. This conduct was described as clearly inconsistent with the concern she had expressed to police. The complainant's credibility was further undermined by earlier police interactions in which no action was taken and no injuries were found.

The mobile phone recording made on the night of the alleged assault was also significant. The recording captured the heated verbal exchange but contained nothing audibly consistent with a physical altercation. His Honour noted that the complainant knew she was being recorded at the time, contrary to her evidence, and that the injuries could have been self-inflicted.

Taking the appellant's evidence as a whole, including its consistency with what he told police on the night and in a subsequent electronically recorded interview, Neilson DCJ concluded that the appellant's account at least raised a reasonable doubt. The Crown had therefore failed to discharge the onus of proof required for conviction.

Orders Made

  • The conviction recorded by the Local Court at Sutherland on 1 September 2022 was set aside
  • Any penalty imposed was set aside
  • The final ADVO made by the magistrate was set aside

Key Takeaways

  • The Liberato direction requires a fact-finder to acquit where the accused's evidence raises a reasonable doubt, even if the fact-finder does not accept the accused's account over the complainant's. The District Court found the magistrate had not applied this principle correctly.
  • Inconsistencies between a witness's stated concerns and their subsequent conduct can be a significant factor in assessing credibility. Leaving children alone with a person whom the complainant had accused of sexually assaulting those same children was treated as plainly inconsistent with the reported fear.
  • A prior pattern of police complaints that resulted in no charges, no injuries confirmed, and no orders being made may be relevant context when assessing the credibility of a later allegation.
  • Where an accused's account is consistent across multiple statements (including a recorded police interview on the night in question), that consistency bears on whether the evidence as a whole leaves open a reasonable doubt.
  • An appellate court is not precluded from interfering with a conviction simply because the trial judge or magistrate was thorough or experienced. The duty to correct legal error applies regardless of the quality of the primary decision-maker.

Legislation and Cases Referenced

Cases:
- Liberato v The Queen (1985) 159 CLR 507
- Fennell v R [2019] HCA 37
- Hewitt v R [2021] NSWCCA 227
- Robinson v The Queen (1999) 197 CLR 162
- Moir v SAS Trustee Corporation (2023, unpublished)

Legislation: No specific legislation was cited in the decision.