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District Court 11 December 2024

R v Guider

[2024] NSWDC 588

Assault & violenceDomestic & family violence
CRIMINAL LAW APPEALS AND REVIEWS APPEALS AGAINST LOCAL COURT CONVICTIONS DOMESTIC VIOLENCE OFFENCES ‘WORD ON WORD’ DISPUTE SIGNIFICANCE OF GOOD CHARACTER

Citation: R v Guider [2024] NSWDC 588
Court: District Court of New South Wales
Date: 11 December 2024
Judge: Abadee DCJ

Background

The appellant was convicted by the Parramatta Local Court on 10 May 2024 of three domestic violence offences arising from a single incident on 3 July 2023 at Pemulwuy. The offences were battery, assault occasioning actual bodily harm, and intentional choking, all directed against the same complainant, with whom the appellant was in a relationship at the time.

The Crown case rested primarily on the complainant's account. She described a sequence of events involving the appellant pushing her head against a wall, biting her cheek, and placing his hands around her neck and choking her for approximately two minutes. The appellant gave evidence disputing this account. He acknowledged an argument and a struggle over a vape device, but denied committing the alleged offences, saying the complainant had struck him.

The complainant reported the incident to police approximately three weeks after it occurred and provided photographs she said she had taken of her injuries on the night. The ex-husband, to whom the complainant said she had complained immediately after the incident, was not called as a Crown witness. An aggregate sentence of 15 months' imprisonment, to be served by way of an Intensive Correction Order, was imposed following conviction.

  • Whether the Magistrate erred in being satisfied beyond reasonable doubt that each of the three alleged sequences of conduct was established, in circumstances where the evidence was largely a "word on word" dispute.
  • Whether the absence of objective proof of when the complainant's photographs were taken undermined their value as corroboration.
  • Whether the prosecution's failure to call the ex-husband as a witness warranted the drawing of an adverse inference under the principles associated with a Mahmood direction (an instruction that a jury or fact-finder may draw an adverse inference where a party fails to call a witness who could give material evidence).
  • Whether the Magistrate gave adequate separate consideration to each sequence of offending and, where doubt existed about one sequence, what effect that had on the assessment of the remaining sequences.

Decision

Abadee DCJ approached the appeal as a rehearing on the certified transcripts and exhibits from the Local Court. His Honour confirmed the established framework: the appellate judge must form an independent view on the evidence and uphold an appeal unless satisfied of the appellant's guilt beyond reasonable doubt, while still recognising the Magistrate's advantage in assessing witness credibility.

The Court identified significant weaknesses in the photographic evidence. The photographs supplied to police were undated, provided some three weeks after the incident, and contained no objective indication of when they were taken. Given that telephone technology routinely records metadata capable of establishing the date and time a photograph is taken, the Court found the photographs did not furnish convincing corroboration of the injuries the complainant attributed to the alleged assaults. This was of particular significance for the sequences involving actual bodily harm and choking, where proof of physical injury or physical reaction was necessary.

The failure to call the ex-husband was a further and substantial weakness. He could have corroborated both the complainant's complaint immediately after the incident and her appearance at that time. The Court found there was considerable force in the submission that a Mahmood direction arose from this omission. A Mahmood direction permits the fact-finder to draw an adverse inference against the party who fails to call a witness reasonably available to them and capable of giving material evidence. Combined with the photographic weaknesses, this absence significantly undermined the Crown case.

The Court rejected the Crown's argument that proof of some sequences supported an inference that the remaining sequences were also established. Such reasoning would invert the requirement that each charge be assessed separately. Drawing on R v Markuleski, the Court noted that doubt about the reliability of the complainant's account in one sequence was capable of shedding light on the reliability of her account in the others. While the appellant's conduct invited suspicion, suspicion does not meet the criminal standard of proof. The Court was not satisfied that the Crown had established each sequence beyond reasonable doubt, and the convictions were set aside.

Orders Made

  • The appeal against convictions is allowed.
  • The convictions for sequences 1, 2 and 3 recorded by the Parramatta Local Court on 10 May 2024 are set aside.
  • In lieu of those convictions, the appellant is found not guilty on each sequence.
  • The aggregate sentence imposed in respect of those sequences is also set aside.

Key Takeaways

  • In a "word on word" domestic violence case, undated photographs provided to police weeks after the alleged incident carry limited corroborative weight, particularly where telephone technology could readily have established when the images were taken.
  • A Mahmood direction (adverse inference for failure to call an available material witness) becomes particularly significant when the photographic evidence in a case is itself weak, and the absent witness could have provided both complaint evidence and direct observation of the complainant's condition.
  • The District Court confirmed that proof of one sequence of offending does not, without more, support an inference that other alleged sequences are also established. Each charge requires separate assessment beyond reasonable doubt.
  • Where the fact-finder has doubt about a complainant's reliability on one sequence, R v Markuleski requires consideration of what that doubt reveals about the complainant's account of the remaining sequences.
  • Suspicion that a defendant acted as alleged is not a sufficient basis for a criminal conviction: the prosecution must establish each element of each offence beyond reasonable doubt, even where the defendant's overall conduct gives cause for concern.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 37 (intentional choking), 59(1) (assault occasioning actual bodily harm), 61 (battery)
- Crimes (Appeal and Review) Act 2001 (NSW), s 18(1)

Cases
- R v Scott [2023] NSWDC 271
- Blacktown City Council v Hocking [2008] NSWCA 144
- Lunney v DPP (2021) 105 NSWLR 236
- McNab v DPP (NSW) (2021) 106 NSWLR 430
- R v Liberato (direction on the significance of an accused's evidence)
- R v Mahmood (adverse inference from failure to call available witnesses)
- R v Markuleski (consideration of reliability across multiple sequences of offending)