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District Court 18 October 2024

McMahon v R

[2024] NSWDC 692

Assault & violence

Citation: McMahon v R [2024] NSWDC 692
Court: District Court of New South Wales
Date: 18 October 2024
Judge: Priestley SC DCJ

Background

The appellant and the complainant are brothers. The appellant faced a Local Court conviction for assault occasioning actual bodily harm, arising from an incident on 10 April 2022, five days after the death of their father, on the family's farming property.

Both men were on horseback when they encountered each other on the property that afternoon. The appellant carried a whip. It was common ground that the appellant cracked or used the whip during the encounter. What was disputed was how many times, whether the whip made contact with the complainant, and if so, in what circumstances.

Within approximately one hour of the incident, the complainant attended a police station. Photographs taken there showed welts on his back consistent with whip strikes. The magistrate at first instance accepted the complainant's evidence and convicted the appellant. The appellant appealed to the District Court under section 18 of the Crimes (Appeal and Review) Act 2001.

  • Whether the magistrate erred in finding the Crown had proved the charge beyond reasonable doubt
  • Whether the magistrate's assessment of the complainant as a compelling or impressive witness was open on the evidence
  • Whether the magistrate wrongly characterised one of the appellant's answers as equivocal, and whether that error affected the outcome
  • How the District Court should approach a section 18 appeal by way of rehearing on the original evidence

Decision

The District Court set out the established framework for section 18 appeals. On such an appeal, the court conducts a rehearing on the original evidence, forms its own view of the facts, and determines whether the evidence was sufficient to prove guilt beyond reasonable doubt. The court must give the judgment it considers should have been given at first instance, while recognising the advantage the magistrate had in seeing and hearing witnesses.

The central factual difficulty for the appellant was the photographic evidence of the complainant's injuries, taken within an hour of the alleged assault. At first glance, Priestley SC DCJ observed, those injuries were strong objective evidence supporting the complainant's account. However, upon detailed analysis of the complainant's evidence, the court found it unreliable in a range of respects. These included the complainant's claim to have been struck in the face when there was no facial injury, and his assertion at trial, some 18 months after the event, that he had been struck on the abdomen, which he had never mentioned to police. The complainant also had a significant background of dishonest offending.

The court found that the complainant was not a credible witness. Because the Crown case depended on accepting his evidence to establish the elements of the offence, the Crown had not proved the charge beyond reasonable doubt. The court also identified specific errors by the magistrate: the finding that the complainant was a compelling witness was not open on the evidence, and the magistrate had wrongly characterised one of the appellant's answers, "not to the best of my knowledge no," as equivocal. The court regarded that answer, read in context alongside the appellant's consistent and unequivocal denials, as not properly equivocal.

The court noted that once the complainant's credibility was rejected, the explanation for the injuries being caused other than by the appellant became more plausible, given the complainant's demonstrated capacity for deception. The conclusion the magistrate reached was therefore erroneous, both in the credibility assessment and in the application of the relevant direction on reasonable doubt.

Orders Made

  • Appeal allowed
  • Conviction and sentencing orders set aside

Key Takeaways

  • A section 18 CARA appeal proceeds by way of rehearing on the original evidence, with the District Court required to form its own view and give the judgment it considers should have been given, while acknowledging the magistrate's advantage in observing witnesses firsthand.
  • Objective photographic evidence of injury does not, of itself, establish a conviction where the only evidence connecting that injury to the defendant comes from a witness whose credibility the appellate court finds to be fundamentally flawed.
  • A prior history of dishonest offending does not automatically disqualify a complainant as a witness, but it is a factor the court weighs alongside other indicia of unreliability, including internal inconsistencies in the evidence.
  • Where a Crown case rests entirely on accepting the complainant's evidence, a finding that the complainant is not credible is sufficient to conclude that guilt has not been proved beyond reasonable doubt.
  • Characterising a defendant's answer as equivocal requires careful attention to the full context of that evidence; the District Court found the magistrate erred in treating one answer as equivocal when the defendant had otherwise given consistent and unequivocal denials throughout.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 18, 19

Cases
- Charara v R [2006] NSWCCA 244
- Dyason v Butterworth [2015] NSWCA 52
- Fox v Percy (2003) 214 CLR 118
- Lunney v DPP [2021] NSWCA 186
- McNabb [2021] NSWCA 298
- Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1