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District Court 22 November 2024

TF v R

[2024] NSWDC 542

Assault & violenceDomestic & family violencePublic order & justice offences
TENDENCY EVIDENCE CHILD GIVING EVIDENCE WHETHER CHILD COMPELLABLE QUESTION OF INCONSISTENT VERDICTS REASONS FOR SOME ACQUITTALS OBSCURE APPLICATION OF LIBERATO AND MARKULESKI

Citation: TF v R [2024] NSWDC 542
Court: District Court of NSW
Date: 22 November 2024
Judge(s): Lerve DCJ

Background

The appellant appealed against convictions recorded in the Local Court for seven offences arising from an intimate partner relationship. The offences were broadly characterised as domestic violence charges, including multiple counts of common assault, assault occasioning actual bodily harm, and one charge of aggravated cruelty to an animal. A guilty plea to a property damage charge was not part of the appeal.

The relationship between the appellant and the complainant ended in December 2022. Their child, WE, was born in November 2016 and was approximately six years old when he was interviewed by police. Family law proceedings between the parties were ongoing at the time of the appeal.

The appeal proceeded as a rehearing before the District Court, with the appellant represented by different counsel than had appeared in the Local Court. The Crown relied substantially on the complainant's evidence, complaint evidence from friends and family, and the recorded police interviews of the child WE.

Legal Issues

  • Whether the tendency evidence admitted in the Local Court remained open to challenge on appeal, given that experienced senior counsel had made no objection at first instance
  • Whether the child WE should have been informed of his rights under section 18 of the Evidence Act 1995 before giving evidence, and what consequences flowed from that omission
  • Whether a warning under section 165 of the Evidence Act was warranted regarding WE's evidence
  • Whether the convictions were consistent with the standard of proof beyond reasonable doubt, applying the principles in Liberato v The Queen (1985) 159 CLR 507 and Markuleski v R (2001) 56 NSWLR 82
  • Whether the acquittals recorded in the Local Court gave rise to inconsistent verdicts requiring acquittals on all counts

Decision

Tendency Evidence:
The court declined to revisit the admissibility of the tendency evidence. The transcript of the Local Court hearing showed a deliberate forensic decision by experienced senior counsel not to object to the tendency notice. There was nothing in that exchange suggesting inadvertence, and the court held that it would not reconsider admissibility where new counsel on appeal was simply seeking to run a different case (at [14]-[17]).

Child Witness WE and Section 18 of the Evidence Act:
The court identified a serious procedural failing: WE was never informed of his rights under section 18 of the Evidence Act, which provides a spouse or certain relatives of an accused with a right to object to being compelled to give evidence. The court described the task of remedying this at the appeal stage as "unscrambling eggs" (at [24]-[25]). However, because six of the seven charges were domestic violence offences, section 279 of the Criminal Procedure Act 1986 rendered WE compellable on those counts regardless. The court found that once WE had given evidence on the domestic violence charges, no further harm to the relationship with the appellant could be done by his evidence on the animal cruelty charge. Accordingly, the evidence was not excluded (at [31]). The court granted a section 165 warning regarding WE's evidence, noting his age, evident reluctance to testify, and the acrimony between his parents (at [32], [84]).

Aggravated Cruelty to an Animal (Sequence 14):
The court upheld the conviction. Both the complainant and WE gave consistent, compelling accounts of the appellant picking up the family dog, Salt, by the collar and striking her against the shed wall multiple times, causing a fractured leg. The court found it defied logic and common sense that a six-year-old child could be coached to maintain a false account through two police interviews, evidence in chief, and cross-examination (at [175]). The appellant's account that he had merely kicked the dog was rejected as inconsistent with the severity of the injury sustained (at [253]). The court was satisfied of guilt beyond reasonable doubt and noted the presence of the child as an aggravating feature (at [255]-[256]).

Remaining Convictions (Sequences 11, 15, 3, 16, 2 and 1):
The court was unable to uphold the six remaining convictions. While the court entertained what it described as "the gravest of suspicion" about the appellant's guilt, it observed that even the gravest suspicion cannot substitute for proof beyond reasonable doubt (at [261]). The court acknowledged real concerns about the complainant's credit, including her motive to advance her position in family law proceedings (at [99]), a disputed account about the vet visit, and conduct that called into question her candour. The court applied the principles in Liberato and Markuleski strictly and found the appellant entitled to acquittals on all six counts (at [262]).

Orders Made

  • Appeal dismissed in respect of Sequence 14 (aggravated cruelty to an animal); conviction confirmed
  • Two-year disqualification from owning an animal confirmed, dating from the order made by the Local Court
  • Appeal upheld and convictions set aside in respect of Sequences 1, 2, 3, 11, 15, and 16

Key Takeaways

  • A deliberate forensic decision by experienced senior counsel not to object to tendency evidence at first instance will ordinarily bind the accused on appeal; different counsel cannot use the appeal to run a case that senior counsel chose not to run below (at [14]-[17]).

  • Failure to inform a child witness of rights under section 18 of the Evidence Act before giving evidence is a serious procedural error. However, where charges are domestic violence offences within the meaning of section 279 of the Criminal Procedure Act, the witness is compellable regardless, and the omission may not require exclusion of the evidence (at [25]-[31]).

  • A section 165 warning about a child witness's potentially unreliable evidence is not automatically required merely because of the child's age; here the warning was given because of the child's evident reluctance and the bitter dispute between the parents (at [32]).

  • The standard of proof beyond reasonable doubt remains a strict constraint even where a tribunal of fact entertains "the gravest of suspicion" about an accused's guilt: suspicion, however strong, cannot substitute for satisfaction to that standard (at [261]-[262]).

  • In dismissing the appeal on the animal cruelty conviction, the District Court confirmed that a child eyewitness's consistent account, maintained across multiple interviews and under cross-examination, can provide compelling evidence, particularly where the account mirrors that of an adult witness and the alternative explanation is difficult to reconcile with the physical injury sustained (at [175], [252]-[255]).

Legislation and Cases Referenced

Legislation
- Crimes Act , 1900
- Criminal Procedure Act , 1986
- Evidence Act , 1995
- Prevention of Cruelty to Animals Act , 1979

Cases
- Bell v Gunter, an unreported decision of 24 October 1997
- Davis v R [2017] NSWCCA 257
- Filip Black v R [2017] NSWDC 326
- GS v R; Director of Public Prosecutions (NSW) v GS [2022] NSWCCA 65
- KRM v The Queen (2001) 206 CLR 221
- Liberato v The Queen (1985) 159 CLR 507
- LS v Director of Public Prosecutions & Anor [2011] NSWSC 1016
- Markuleski v R (2001) 56 NSWLR 82
- Mulvihill v R [2016] NSWCCA 259
- Murray v R (1987) 11 NSWLR 11
- Nudd v The Queen (2006) 80 ALJR 614
- R v A1 (No. 2) [2019] NSWSC 663
- R v Jovanovic (1997) 98 A Crim R 1
- Roach v R [2019] NSWCCA 160
- Sahartor v R [2020] NSWCCA 36
- South v R [2007] NSWCCA 117