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District Court 15 November 2023

Hamad v R

[2023] NSWDC 492

Assault & violence

Citation: Hamad v R [2023] NSWDC 492
Court: District Court of New South Wales
Date: 15 November 2023
Judge: Scotting DCJ

Background

Following a minor road collision in Hurstville in October 2022, an altercation occurred between the two drivers. The complainant alleged he was assaulted twice: first by kicks and punches to his head, and then by being placed in a chokehold from behind. The appellant maintained that he was the one who had been assaulted, and that any force he used was in self-defence.

A magistrate at Sutherland Local Court convicted the appellant of two counts of assault occasioning actual bodily harm under s 59(1) of the Crimes Act 1900, while acquitting him on a separate intimidation charge. There were no independent witnesses. The evidence comprised the competing accounts of the two drivers, photographic evidence, body-worn camera footage, dash camera footage, and medical records from St George Hospital.

The appellant appealed to the District Court as of right, arguing that the magistrate had not properly applied the Liberato principles and had failed to give adequate weight to inconsistencies in the complainant's evidence.

  • Whether the magistrate properly applied the Liberato direction when assessing the competing accounts of the complainant and the appellant
  • Whether the magistrate adequately considered alleged inconsistencies between the complainant's evidence in chief, his cross-examination, and his original police statement
  • Whether those inconsistencies, taken together, gave rise to a reasonable doubt about the appellant's guilt

Decision

Scotting DCJ conducted an independent review of the evidence as required under s 18 of the Crimes (Appeal and Review) Act 2001, which treats the appeal as a rehearing on the certified transcript rather than a fresh trial. The District Court noted that demonstrating error remains a threshold requirement for a successful appeal, but that this does not shift the prosecution's obligation to prove guilt beyond reasonable doubt.

On the Liberato argument, the District Court found that the magistrate had in fact given herself the required direction and had applied it correctly. The magistrate identified that the appellant's evidence could not explain the complainant's injuries, rejected the appellant's account on that basis, and then returned to assess the complainant's evidence independently. That sequence, the District Court held, reflected proper application of the principles.

Regarding the alleged inconsistencies in the complainant's evidence, the District Court found they did not go to the heart of the allegations. The differences were characterised as minor details, including omissions from the police statement that were plausibly explained by the complainant's state of mind following a traumatic incident. The complainant's account was described as clear and relatively consistent on the core allegations, and was corroborated by the objective medical evidence and the photographs of his injuries.

The dash camera footage, which did not support the complainant's version of the collision itself, was held to be irrelevant to the assault allegations. The District Court accepted that the magistrate was correct to leave questions of fault in the traffic accident to one side. No error was established in the magistrate's reasoning, and the District Court was independently satisfied beyond reasonable doubt of the appellant's guilt on both assault counts.

Orders Made

  • The appeal against conviction is dismissed.

Key Takeaways

  • A District Court appeal under s 18 of the Crimes (Appeal and Review) Act 2001 is a rehearing on the transcript, not a de novo trial, and requires the appellant to demonstrate factual, legal, or discretionary error before the conviction will be disturbed.
  • The Liberato principles require a court to separately assess a complainant's evidence after rejecting an accused's account; a magistrate who follows that two-step process will not be found to have misapplied the direction simply because minor inconsistencies exist in the complainant's evidence.
  • Inconsistencies between a complainant's evidence in chief, cross-examination, and police statement do not automatically give rise to reasonable doubt, particularly where those discrepancies relate to peripheral detail rather than the core of the allegations.
  • Where an accused's version is rejected because it cannot account for the complainant's injuries, and that rejection is grounded in the objective medical and photographic evidence, an appellate court is unlikely to find error in the fact-finder's reasoning process.
  • In dismissing the appeal, the District Court confirmed that conduct consistent with an immediate complaint, including remaining at the scene to await police, may properly be treated as corroborating a complainant's account.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 59(1)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 18, 20

Cases
- Liberato v The Queen (1985) 159 CLR 507
- Fox v Percy (2003) 214 CLR 118
- AG v Director of Public Prosecutions [2015] NSWCA 218
- 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