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Charges: Common assault x 1; Contravening a Family Violence Order x 1.
Proceedings: Appeal from ACT Supreme Court against convictions imposed in the ACT Magistrates Court.
Facts: The male appellant and female complainant were married and living together. The appellant kicked the complainant’s leg during an argument. The applicant breached a family violence order by engaging in offensive or harassing behaviour towards the complainant or by harassing, threatening or intimidating her. The complainant made an audio-recording and a central issue in the appeal was whether the magistrate in the initial hearing had erred in ruling that the audio recording was admissible. The appellant’s appeal to the Supreme Court against his conviction was dismissed: NS v Hotchkis [2019] ACTSC 309 (8 November 2019).
Grounds of appeal: The primary appeal judge erred in dismissing the first appeal on grounds that:
Held: Appeal dismissed.
Ground 1: There was no error in the primary judge’s conclusion that ss 4 and 5 were not breached, as the complainant believed, on reasonable grounds, the recording was necessary for the protection of her lawful interests. Further, there was no error in concluding there was no prohibition in s 10 for the admissibility of the conversation. No question of the application of s 138 of the Evidence Act arose.
Ground 2: The primary judge reviewed the evidence, set out findings of fact and reasons given by the magistrate, and referred to the appellant’s submissions that the statements made did not breach the family violence order. There was no error in the primary judge’s conclusion:
“I have no hesitation in agreeing with the Magistrate that the evidence established a breach of the family violence order. Having listening to the recording on numerous occasions, I am satisfied that his conduct was, and was intended to be, harassing and intimidating. I agree with the Magistrate that he was yelling at [the complainant], and that his tone was aggressive. His suggestion that he was talking to the dog is improbable, but in any event I am satisfied that his conduct was really directed towards [the complainant], and intimidating her.”
“In finding the appellant guilty of assault, the Magistrate was entitled to take into account the clear aggression demonstrated by the appellant at the time that [the complainant] says she was kicked. She was also entitled to find that the appellant had threatened to “snot” [the complainant], and that this was a threat to hit her. The Magistrate was also entitled to find that the accused had kicked the rubbish bin just before he kicked the complainant, although his intention may have been to scare the dog. These were all circumstances supportive of the evidence of [the complainant]. Finally, the Magistrate had the benefit of seeing and hearing [the complainant] cross examined and the appellant giving his evidence. Her finding that [the complainant] was a credible witness, and the appellant was not, should not lightly be interfered with. I am satisfied that there was ample evidence upon which the Magistrate was entitled to convict the appellant.”
Proceedings: Appeal of Family Violence Order.
Facts: The matter was an appeal to the Court of Appeal following a final Family Violence Order (FVO) made against the appellant by the Chief Magistrate, and upheld on appeal by the Primary Judge: TS v DT [2019] ACTSC 295 (25 October 2019). The appellant sought that the FVO made by the Chief Magistrate be quashed, and no further orders made excluding the appellant from the premises of the family home (where the respondent was living).
Issues: The male appellant applied to adduce additional evidence in the appeal. The appellant also raised 12 grounds of appeal: the decisions of the Chief Magistrate (Ground 1) and Primary Judge (Ground 2) were unreasonable and not supported by evidence; the Chief Magistrate erred in running a final hearing on the FVO application (Grounds 3 and 10), making an FVO that was too long (2 years from final hearing) (Ground 4) and applying the Browne v Dunn principle (Ground 5); the Primary Judge attempted to cover up the Chief Magistrate’s alleged misconduct (Ground 6); the Chief Magistrate erred in law by relying on 2018 convictions (Ground 7) and the 2007/8 incident to support the making of the FVO (Ground 8); there was judicial misconduct by the Chief Justice in the conduct of the final hearing (Ground 9); and there was failure to have regard to evidence including relating to “property law issues” and the accommodation difficulties of the appellant (Grounds 11 and 12).
Decision and reasoning: The application to adduce additional evidence was refused ([52]-[64]), and the grounds of appeal were dismissed ([65]-[162]).
On Grounds 1 and 2, the decisions of the Chief Magistrate and Primary Judge were not unreasonable and were supported by evidence (including specific instances of violence against the respondent and her son, further supported by criminal convictions of the appellant) ([66]-[87]).
On Grounds 3 and 10, there was no error in making a final order excluding the appellant from access to the family home as the proceedings were run as a final hearing ([88]-[100], [142]-[143]). On Ground 4, the FVO’s duration was grounded in statute. Further, the Chief Magistrate weighed the competing interests of the appellant and the respondent (including the appellant’s accommodation difficulties) but found these could only be remedied by excluding the appellant from the family home ([101]-[112]). On Ground 5, there was no error in application of the Browne v Dunn principle ([113-[122]) and on Ground 6, there was no evidence of judicial bias ([123]-[125]).
On Ground 7, there was no miscarriage of justice relating to the 2018 convictions (which confirmed findings of instances of violence and substantiated the respondent’s fear) ([126]-[131]) and on Ground 8, appropriate regard was had to an incident in 2007/8 ([132]-[137]). On Ground 9, the Chief Magistrate’s conduct during the hearing was unremarkable ([138]-[141]).
On Grounds 11 and 12, the Chief Magistrate and Primary Judge had due regard to the evidence presented by the appellant, including evidence relating to “property law issues” and the accommodation circumstances of the appellant ([142]-[161]). On the property law issues, at [153]-[154], the Court noted:
“The appellant contends that the respondent had an additional purpose in seeking as a condition of the final FVO that the appellant be excluded from the family house – namely, an objective on the respondent’s part to obtain sole ownership of the family home. As I noted earlier, irrespective whether this was the case, there was clear evidence before the Chief Magistrate that the respondent would have difficulty relocating her place of residence and, further, that there was a history of violent conduct on the part of the appellant towards the respondent which supported the final FVO being made.
Further, and notwithstanding the submissions of the appellant to the contrary, the ultimate proper disposition of assets is a matter for the family law proceedings. That the respondent may seek sole ownership of the matrimonial home in those proceedings does not mean that her claims under the FV Act had no basis.”
Charges: Burglary x 1 (guilty); Unlawful confinement x 1 (guilty); Choking x 1 (guilty); Indecent assault x 1 (not guilty); Choking x 1 (not guilty); Intentionally causing property damage x 3 (not guilty); Stealing CCTV hard drive x 1 (not guilty).
Proceedings: Application for leave to amend notice of appeal and for leave to appeal (grounds 3, 4, 6 and 7) and appeal against conviction and sentence.
Facts: The trial court found that the appellant man broke into his former partner’s (the complainant’s) house before dragging her from bed and strangling her. The complainant’s evidence was that the appellant ‘made her stay’ in the room by threatening to strangle her if she tried to leave, strangling her multiple times and threatening to kill her. The appellant allegedly committed property damage. There was some delay before the complainant alleged that the appellant had indecently assaulted her. The appellant allegedly ripped out the CCTV hard drive before leaving. The appellant also allegedly slashed the tyres of the complainant’s car.
Grounds of appeal: (1) Verdicts were inconsistent; (2) Verdicts were unreasonable, unsafe and unsatisfactory; … (6) Trial judge erred in making factual findings; (7) Sentences were manifestly excessive.
Decision and reasoning:
Grounds (1)-(2) Dismissed.
There were rational explanations why the jury may have acquitted the appellant of some charges while finding the appellant guilty on others. One factor identified was that the complainant was upset and frightened; she ‘may have misremembered matters or failed to appreciate details’, although the complainant did make some errors in her evidence and did not directly witness some of the alleged charges/events. Where there were inconsistencies in the complainant’s evidence, the jury may have accepted that this was because she had just ‘survived a gruelling series of events’ [101].
Ground (6) Allowed.
Two of the trial judge’s factual errors did not reduce the objective seriousness of the offence to something less than ‘midrange’:
[155] The offence was committed in the complainant’s home, during the night. It was motivated by a desire to vent anger and assert physical control over the complainant in response to her termination of the relationship. The offence was of not insignificant duration. It was associated with violence and a threat to kill; whether the violence was properly described as “extreme violence” poses a semantic question that is unnecessary to answer.
A third factual error of substance required the Court of Appeal to resentence on Counts 1, 2 and 3.
Ground (7) Allowed. Total sentence reduced from 5 years and 5 months to 3 years and 6 months.
Offences: Common assault x2; possessing offensive weapon with intent x1; d amaging property x 2; make demand with threat to kill x1; aggravated dangerous driving x1
Proceedings: Appeal against sentence
Issues: The Crown submitted that the sentences were manifestly inadequate:
Facts: R (the appellant man) and C (the complainant woman) were in a relationship at the time of offending. An argument had broken out after R told C he wanted to commit suicide. R grabbed C as she tried to leave their shared bedroom and pushed her onto the bed (first common assault). He then retrieved a large axe from their wardrobe. R pushed C to the ground while they struggled over the axe (second common assault) and swung the axe at her head, narrowly missing. R used the axe to damage items within the house before forcing the couple’s four children into his car. He left and returned several times to demand C get in the car. He eventually threatened to kill their eldest daughter with the axe if C did not get in but drove away once more as police approached his vehicle. This led to a large-scale search. The R was located and arrested later that evening. While all four children were physically unharmed, the eldest daughter was later assessed by a paediatrician who thought it was likely that the offences significantly impacted her emotional and behavioural wellbeing.
On the day of offending, the respondent had failed to take his prescribed antidepressant medication and had consumed a significant quantity of alcohol.
Initially R pleaded not guilty to all charges. Following discussions between the parties the respondent pleaded guilty to six charges and was committed to the Supreme Court for sentence.
The sentencing judge imposed a total sentence of 16 months’ imprisonment.
Judgment: In addressing the first aspect, the Court noted that while the offender’s mental health condition somewhat reduced his moral culpability, it was still necessary to consider the sentencing purposes of general deterrence and denunciation. By failing to reflect these purposes, along with the high objective seriousness of the offence, the sentence starting point of 18 months’ imprisonment for the offence of making a demand with threat to kill was "plainly unreasonable" [69-71]. For the second aspect, the Court believed the degree of cumulation failed to achieve a total sentence that was just and appropriate to reflect the overall criminality [73]. The Court did not make a decision as to the third aspect as they had found they had already found the sentences to be manifestly inadequate for other reasons. Despite finding the sentences manifestly inadequate, the Court refused to resentence the offender on the basis that the appeal raised no point of principle, had limited precedent value and would disrupt the offender’s rehabilitation [97].
The Court also discussed the preliminary issue of the correct approach to sentencing for family violence offences and the correct manner of dealing with the effect of a sentence of imprisonment on the offender’s family [44]. The Court rejected the Crown’s contention that family violence offences constitute a special category of offence in relation to which different sentencing principles apply, and instead provided that absent a statutory provision to the contrary, the same sentencing standards should apply to all offenders (Bugmy v The Queen) [48]-[51].
Charges: Engaging in sexual intercourse without consent and being reckless as to whether the person was consenting x 1.
Appeal type: Defendant’s appeal against conviction and Crown appeal against sentence.
Facts: The complainant and defendant were in a relationship ([11]). The defendant asked the complainant to leave the house; she did not want to leave. The complainant alleged that the defendant held her down and digitally penetrated her ([13]). The defendant denied that he digitally penetrated the complainant, and alleged that she damaged a number of his belongings ([14]). The defendant called the police about the property damage, and the complainant called the police about the sexual assault 2 hours later ([20]-[21]). A medical examination of the complainant revealed abrasions consistent with assault ([23]).
The defendant was convicted at trial. He was sentenced to 2 years and 6 months’ imprisonment, served by way of intensive correction order (‘ICO’), and 100 hours’ community service ([2]).
Issues: The defendant appealed against conviction on 3 grounds: (a) the verdict was unsafe and unsatisfactory; (b) the trial judge caused a miscarriage of justice by failing to fairly put the defence case to the jury; and (c) the trial judge caused a miscarriage of justice by failing to direct the jury that the complainant had a motive to lie.
The Crown appealed on the ground that the sentence was manifestly inadequate.
Decision and Reasoning: Both the defendant’s appeal against conviction and Crown appeal against sentenced were dismissed ([8]).
Appeal against conviction
On ground (a), the defendant argued that the verdict was unsafe and unsatisfactory having regard to the unreliability of the complainant’s evidence. The Court (Murrell CJ, Bromwich J and Robinson AJ) held that while it was ‘somewhat implausible’ that the complainant did not cause the property damage, it was open to the jury to convict the defendant ([53]).
On grounds (b) and (c), the defendant argued that the judge should have directed the jury on the complainant’s possible motive to lie to avoid the consequences of her causing the property damage. However, the Court stated that the summing up was fair, given that the motive to lie was not a large issue in the trial ([66]-[68]).
Crown appeal against sentence
The Crown argued that by ordering an ICO, the trial judge failed to give adequate weight ‘to the principle that, for family violence offences, the sentencing purposes of general deterrence and denunciation are particularly important’ ([96]). The Court reiterated the importance of general and specific deterrence in sentencing family violence offenders ([97]), however, the Court emphasised the exceptional nature of the offending at [99]:
This was not a typical offence of family violence. There was no evidence of a history of domestic violence, controlling behaviour or psychological abuse. There were none of the typical indicia of power imbalance. Rather, the offence occurred in the context of a relationship ending, without those features apparently being present.
Imposing an ICO, while lenient, was justified by the defendant’s subjective circumstances, such as his lack of criminal history, and the fact that there was no history of domestic violence in the relationship ([129]-[130]).
Charge/s: Trafficking in cocaine, assault occasioning actual bodily harm (two counts), forcible confinement, perverting the course of justice. Grievous bodily harm.
Appeal Type: Appeal against sentence.
Facts: The sentence imposed at first instance related to three distinct instances of criminality: the drug offence, the domestic violence offences and the perverting the course of justice offence. The domestic violence offences involved the appellant severely beating his then domestic partner which caused horrific injuries. He also choked her in the presence of his young son, restrained her from leaving their premises and forced her to take prescription sedatives so as to prevent her from seeking medical treatment which would reveal the assaults. He detained her for 24 hours. The perverting the course of justice offence involved the appellant encouraging his (by then former) partner not to attend court in relation to the domestic violence charges and encouraging her to produce false evidence about her psychological frame of mind. The aggregate sentence imposed was 12 years and 11 months’ imprisonment with a non-parole period of 8 years and 4 months.
Issue/s: Whether the aggregate sentence was manifestly excessive.
Decision and Reasoning: The appeal was dismissed. The appellant submitted that the domestic violence sentences should not have been made cumulative on the sentences for the drug offences. He also submitted that the sentencing judge did not apply the totality principle. The Court held that while the aggregate sentence could be considered by some to be somewhat harsh, it was not unreasonable and was appropriate having regard to all the circumstances. There was no overlap in the three instances of criminality, nor could it be said that the three incidents arose from a single episode or course of conduct, ‘such that the criminality involved in one of the incidents was subsumed or comprehended in the others’ (see at [29]). The sentencing judge did take accumulation, concurrency and totality into account and did impose a degree of concurrency.
Charge/s: Intentionally inflicting actual bodily harm, choking so as to render unconscious.
Appeal Type: Appeal against sentence.
Facts: The appellant’s marriage with his wife ended and she obtained a domestic violence protection order against him (though this was not in place at the time of the offence). The appellant went to the family home and an argument ensued, which developed into a physical fight. The appellant then took a chair from his wife (which she was threatening to throw at him) and struck her with it so forcefully that it broke into pieces. He then choked her until she became unconscious. He then wrapped a towel around her neck and used both hands to pull the material down toward the floor. A domestic violence protection order was previously in place in favour of the victim. He was subject to a good behaviour order at the time of the offences imposed for a prior breach of the protection order. He was sentenced to a total of four years and seven months’ imprisonment with a non-parole period of three years and one month.
Issue/s:
Decision and Reasoning: The appeal was dismissed.
Charge/s: Assault, contravention of a protection order.
Appeal type: Appeal against conviction and appeal against sentence.
Facts: The appellant was charged with assaulting his female partner (‘the complainant’) and contravening a protection order in her favour. He pleaded guilty to assault but not guilty to contravening a protection order. The offending came to light after a police officer (‘the informant’) attended the complainant’s premises. The informant observed that the complainant was very distressed and had bruises on her body. A conversation between the complainant and the informant was recorded. In this conversation, the complainant made some allegations that the appellant had hit her but she was largely unresponsive to questions and was affected to a considerable degree by alcohol (See [41]-[43]). At trial, the prosecution sought to prove the tape and transcript of this conversation only for its possible use in refreshing the complainant’s memory. However, counsel for the appellant, Mr Elmaraazey, tendered this document as evidence (‘exhibit 3’).
The complainant was called to give evidence after the informant. When asked about whether there was an incident between her and the appellant, she stated ‘I can’t remember the exact details’ and proceeded to give an account of the evening that made no reference to any physical violence. She agreed that she had a conversation with the informant but could not recall its contents. The prosecution then proceeded to cross-examine the complainant about the various bruises that had been observed on her that evening. The complainant said she could not remember how the bruises happened. The prosecution applied to the magistrate for leave to cross-examine the complainant on the basis that the witness had made a prior inconsistent statement with reference to exhibit 3. Mr Elmaraazey did not object. The complainant’s response was to accept that exhibit 3 accurately reflected what she had told the informant but she could neither confirm nor deny that it represented what actually happened (See [26]-[40]). Accordingly, absent the tender of exhibit 3 as evidence, there would have been insufficient evidence to convict the appellant (See [47]).
The magistrate found the appellant had assaulted the complainant and sentenced him to 12 months imprisonment for the assault and 3 months imprisonment for the breach of protection order. He was sentenced to an additional 6 months imprisonment for breach of an earlier imposed recognisance.
Issue/s:
Decision and reasoning: The appeal was allowed. First, in the absence of the tender of exhibit 3 by Mr Elmaraazey, it was, at the very least, unlikely that the statement would have been admitted as evidence that the appellant assaulted the complainant. It was open to the prosecutor to seek leave to give the statement to the complainant to refresh her memory, if s 32 of the Evidence Act were satisfied. However, the failure of this process to refresh the complainant’s memory meant the prosecutor could not tender the prior statement as evidence of the truth of its contents (See [145]-[180]). There was a resulting miscarriage of justice (See [181]-[191]).
Second, the sentencing judge erred in assuming that all the injuries resulted from the charged assault. Even if the terms of exhibit 3 had been properly proved, they included an allegation of assault that had occurred the previous evening. The only unequivocal allegation of recent violence was that the appellant hit her in the face on their return from the shops. It was an error not to attempt to distinguish between the violence inflicted the previous night and those in the hours preceding the interview with the informant (See [196]-[207]).
