Citation: Kandalepas v R [2024] NSWDC 447
Court: District Court of New South Wales
Date: 25 September 2024
Judge: Scotting DCJ
Background
The appellant had been in an on-and-off intimate relationship with the complainant. In the early hours of 26 January 2020, the pair met at a service station in Sydenham and an argument developed inside the complainant's vehicle. A third party, an independent witness, also became involved in the incident.
The prosecution alleged five sequences of criminal conduct: punching and smashing the vehicle's windscreen, poking the complainant with a finger, threatening to harm the complainant and her family, threatening the independent witness, and pressing his forehead against the independent witness's face. The appellant was convicted in the Local Court on all five charges, comprising counts of damage to property, two counts of common assault, and two counts of intimidation.
The appellant appealed to the District Court against both conviction and the severity of his sentence. He denied each charge, giving an alternative account that attributed the broken windscreen to an accidental collision between his hands and the glass while trying to stop the complainant from hitting him, and describing his interaction with the independent witness as a friendly attempt to prevent the man from stumbling and falling.
Legal Issues
- Whether the Magistrate erred in his credit assessments of the complainant, the independent witness, and the appellant
- Whether a temporal inconsistency between the complainant's and the independent witness's accounts of the windscreen-smashing rendered the complainant's evidence unreliable
- Whether the absence of complaint to the 000 operator or investigating officer about the "poking" (sequence 2) and the threats (sequence 3) undermined those convictions
- Whether inconsistencies between the complainant's and the independent witness's evidence about sequences 4 and 5 required the convictions on those charges to be set aside
- Whether the sentence imposed was manifestly excessive in relation to the community service component
Decision
Scotting DCJ set out the applicable appellate principles: an appeal under s 18 of the Crimes (Appeal and Review) Act 2001 proceeds by way of rehearing on the certified transcript, not as a fresh trial. The appellate judge must form an independent view of the facts while acknowledging that the magistrate had the advantage of seeing and hearing the witnesses. Intervention requires demonstration of factual, legal, or discretionary error, and the prosecution retains the burden of proving guilt beyond reasonable doubt throughout.
His Honour reviewed the Magistrate's reasons and found them to be well-organised and comprehensive. The Magistrate had applied all necessary warnings, made detailed credit findings, and identified the appellant's shifting and inconsistent accounts of how the windscreen was broken. His Honour found no error in the Magistrate's acceptance of the complainant as a forthright and compelling witness, or in his assessment of the independent witness as frank and honest.
On the temporal inconsistency argument concerning sequence 1, the District Court held that it is common for witnesses to mix up the order of events when recounting stressful and traumatic experiences. The complainant's account was corroborated by the independent witness, and the Magistrate's rejection of the appellant's version as fanciful was open on the evidence.
Regarding sequences 2 and 3, the District Court found that the argument from absent complaint proceeded on a false premise: a 000 call or an account to police at the scene is not expected to be an exhaustive record against which trial evidence must be measured. On sequences 4 and 5, the inconsistencies relied upon by the appellant were, in the Court's view, no more than peripheral. The Magistrate correctly applied the Liberato direction (the rule requiring a jury or fact-finder to acquit if it believes or cannot exclude the accused's version) in each instance. The conviction appeal was dismissed in full. The severity appeal succeeded in part, with the community service component reduced.
Orders Made
- Appeal against conviction dismissed.
- Appeal against severity of sentence allowed.
- Penalty confirmed as imposed by the Magistrate, except community service reduced to 100 hours.
Key Takeaways
- In dismissing the appeal, the District Court confirmed that a magistrate's credit findings will not be disturbed on appeal merely because inconsistencies exist in the prosecution evidence, particularly where those inconsistencies relate to the sequencing of traumatic events.
- A 000 call or police statement made in the immediate aftermath of an incident is not treated as an exhaustive account; the absence of a particular complaint from such a record does not, of itself, undermine the credibility of evidence given at trial.
- Under s 18 of the Crimes (Appeal and Review) Act 2001, an appeal is a rehearing on the transcript and not a trial de novo; the appellate judge must recognise the magistrate's advantage in assessing witness credibility.
- No error was established where the Magistrate rejected the appellant's version as fanciful and accepted corroborated prosecution evidence, even where the complainant's account was not perfect in every detail.
- Correct application of the Liberato direction, where a fact-finder must acquit if it believes or cannot exclude the defendant's version, is a relevant indicator that a conviction has been properly reached and will weigh against appellate intervention.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), s 18
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
- McNab v Director of Public Prosecutions [2021] NSWCA 298