Burgess v R [2021] NSWDC 165

District Court New South Wales

Medium Neutral Citation: Burgess v R [2021] NSWDC 165 Hearing dates: 19 March 2021 Date of orders: 19 March 2021 Decision date: 19 March 2021 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: The appeal was upheld. The conviction and sentence orders were set aside. Catchwords: APPEALS — District Court — Conviction appeal — Onus and standard of proof — Liberato direction — Assessment of credibility — Reverse character Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 Cases Cited: Liberato v The Queen (1985) 159 CLR 507 De Silva v The Queen [2019] HCA 48 Texts Cited: Nil Category: Principal judgment Parties: Samuel Burgess (Appellant)

Regina (Respondent) Representation: Ms N Keay (Crown Prosecutor, Office of the Director of Public Prosecutions)

Mr P Boulten SC, Mr C Parkin (Counsel for the appellant) File Number(s): 2019/340757; 2019/328078 Decision under appeal Court or tribunal: Local Court of NSW Jurisdiction: Criminal Date of Decision: 05 February 2021 Before: Acting Magistrate R Rabbidge File Number(s): 2019/340757

Judgment 1. The appellant was convicted of an offence of intimidation contrary to s 13 of the Crimes (Domestic and Personal Violence) Act 2007 following a two day hearing before a Local Court Magistrate. Section 7 of the Act defines intimidation as, (a) conduct (including cyberbullying) amounting to harassment or molestation of the person, or (b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or (c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property. 1. The nature of the appeal before this Court is a rehearing on the evidence given in the Local Court. I must form my own judgment of the facts but recognising the advantage enjoyed by the Magistrate who saw and heard the witnesses. The reasons of the Magistrate are not part of the record that I must consider, but the appellate process cannot sensibly proceed without considering the Magistrate's reasoning, given that the parties have both directed submissions to the Magistrate's reasons in particular in this case. 2. In short there was an event that occurred at a home in Bowral on 19 October 2019. The appellant, Sam Burgess, was there between 2pm and 4pm to have access to his two young children. The home was owned by Mr Hooke, his father-in-law. His wife Phoebe had left the children there and did not wish to see Burgess when she returned at the end of the access visit. 3. The nature of the interaction between Burgess and Mr Hooke shortly after 4pm led to the charge. As Mr Boulten SC noted, after the appellant, Burgess, left the property, before Mitchell Hooke and Mitch Hooke and Phoebe went to the Police station, they made numerous calls to lawyers and public relations or media consultants before they prepared their statements. 4. The appellant gave evidence. In short the Magistrate rejected the appellant's evidence in terms which are only in my view set out in two brief phrases. Firstly saying, "I reject Mr Burgess' account" and secondly noting that Mr Burgess' evidence was changeable. 5. The Crown implicitly acknowledges that the Magistrate did not articulate or answer an essential direction in a case such as this, namely, where a person has given evidence a Magistrate had to be positively satisfied that there was no reasonable possibility that his version of events could be true. The Crown's response to the failure by the Magistrate to pose the correct test is to say that it was clear from a number of matters in the Magistrate's reasons that the Magistrate rejected the evidence of the appellant. . 6. The standard direction that is given to juries, and that I must take into account is that the accused does not have to prove that his version is true. The Crown has to prove that the version should not be accepted as a version of events that could reasonably be true: Liberato v The Queen (1985) 159 CLR 507. That has been recently clarified by the High Court in De Silva v The Queen [2019] HCA 48 as meaning,that in a case where a person has given evidence, first if the person's evidence is believed than obviously he must be acquitted. Secondly, if there is difficulty in accepting his evidence but the Court thinks that it might be true than he must be acquitted. Thirdly, even if his evidence is not believed than it should be put to one side and the question remains as to whether the Crown has proved guilt beyond reasonable doubt on the evidence which is accepted in the Crown case. 7. This was a case of the word of Burgess against the word of Hooke. The evidence of Hooke's daughter, Harriet, who came upon the scene after the commencement of the exchange, is of little, if any, relevance in my view. She said that she could not remember her father saying anything during the course of the incident. She said that she approached her father and said, "Let it go dad" and attempted to take him inside. It was not until she gave evidence before the Magistrate that she first suggested that Burgess had made a threat to her father to the effect that, "I'll get you". Her explanation for failing to include that in a statement given to the police on the night is not an acceptable explanation. 8. The submission put by Mr Boulten is that while the Magistrate had the advantage of seeing the witnesses give evidence this is the kind of case in which limited or no weight should be given to his reasons because of the failure to give himself critical directions of law. The Magistrate's reasoning on critical matters, including reasoning as to credit, was lacking in any rational foundation. In short, I accept Mr Boulten's submissions as to the limited weight that can be placed upon the Magistrate's advantage in seeing the witnesses. 9. I have carefully read and reread the transcript and the submissions over the course of the week. The submissions are very detailed from both the appellant and the Crown and it is unnecessary for the purposes of this judgment to communicate each and every matter upon which the decision is made. 10. In short, Burgess accepted that an altercation had taken place as the time came for the end of his two hour access visit to the children. There had been a series of text messages with Phoebe in which she made it clear that she did not want see him, even though he wanted to see her. The last text message between the two was at 4.07pm when she said, "Please head off, I'm on my way. Honestly I'll send a pic when I've arrived home. I'm not up to seeing you today, please understand". 11. At 4:08pm she rang her father having said that she had been parked a little way down the street from their house. At 4.15pm photographs were taken by Burgess as he was in his car about to leave depicting Mitchell Hooke picking up the baby and Harriet Hooke holding the other child. The incident, therefore occurred between about 4:08pm and 4:15pm minutes. 12. There was a call from Hooke to Phoebe at 4:18pm and her evidence was that she was in the course of that call when she said, "I'm here" and she hung up. She then called her lawyer, a solicitor who was acting for her in the Family law proceedings and spoke to her for almost four and a half minutes. 13. Burgess sent her text while she was on her phone to her lawyer saying, "Really should stick to your plan Phoebe, that didn't work". Burgess then called Anthony Bell and spoke to him for almost ten minutes. Bell was described as a friend of both Phoebe and Sam Burgess and of the family. 14. At 4:24 Phoebe sent a message saying, "Don't you ever message me again". Burgess replied, "You're still not home. Billy crawling out the front door and Poppy as I left. Great parenting". 15. She replied and said, "Harriet witnessed that, you're a pig. I was waiting down the road to get back to my babies. You're an absolute low life, how dare you. We are done. At least two people have now seen who you really are you fuck". 1. He responded with a version which was consistent with his evidence before the Magistrate. He said, "You guys are all the same. Your dad does exactly what you do, non-stop followed me around provoking me. It was exactly like you. Harriet had to come and stop your dad. So bad the kids were crawling out of the house. I took photos. They were left unattended by your dad". 1. Around this time Hooke had called Sydney Williams QC in Brisbane. At 4:48pm, Williams called him back and they spoke for 14 minutes. The Police arrived just after 5pm. The chronology shows that there were numerous calls between Hooke and Williams QC during the course of the next hours before Mitchell and Harriet Hooke went to Southern Highlands Police Station at 9.30pm. 2. There were a number of calls from Mitchell Hooke to Paul Doolan, who was the senior partner in the firm of lawyers of which Ms Middleton was a solicitor. For reasons which were not quite clear Mr Hooke said that Doolan was his lawyer in the Family law proceedings. 3. Burgess said that just after 4:00pm Hooke walked in, tapped his watch and said to Burgess, "Time's up, you must go". That caused Burgess to say that he thought this was inhumane. He said that Hooke said to him, "Well if you want to talk about inhumane we can talk about what's inhumane". Burgess said, "Don't do it in front of the children, let's just leave it" and Burgess says that Hooke kept saying to him things to the effect of, "Well you opened the batting, let's discuss what's inhumane". 4. They went outside. Burgess's case was that he stood some 5-6 metres away from Hooke. Hooke said to him, "You could have had all this" to which Burgess responded, "All of what, I don't want that, it's all fake". He says that Hooke was upset by this and shouted out back to Burgess, "Fuck you Sam" and Burgess said that he returned serve. This conversation occurred while they were some metres apart. Burgess said he closed the boot of his car with the stroller in it and Hooke said to him, "I'm going to make sure I ruin your career if it's the last thing I do". 5. At this point Harriett arrived on the scene and asked Mitch to stop and said, "Just leave it dad" because Hooke was still abusing Burgess after Burgess had got into his car. As Burgess executed a three point turn in the driveway to leave, from the car he saw his children outside on the ground having crawled out from the living room to the front door. He was upset by this because he did not want to leave the children with Hooke. He took a photo to show why he did not want to leave the children unattended with Hooke which led to him sending a message that I have referred to at 4.32pm. 6. Burgess, firmly denied the prosecution case when it was put to him in cross-examination. In particular at pages 52 to 54 of the transcript, it was put to him that during the argument he got to within 20 centimetres of Mitch. He said, "That's not true". He put to him that he had said, "I'm going to get you. You've done this, you've orchestrated this, fuck you, I'm going to come after you". Burgess said, "That's not true whatsoever. I didn't say that. Like I said inside the house there was minimum conversation". He said, "So it's possible you said that outside the house then"? He said, "No, I didn't say that to Mitch at all". 7. There are a number of reasons why, in my view, Mr Burgess' version should be accepted as, at least, a reasonably possible version of the truth. First, Burgess took no issue with the fact that there was an altercation in which both he and Hooke were angry. The critical dispute was about whether he said words which constituted the offence as it was presumably specified by the prosecution, although never directly specified. The case was brought on the basis that the offence would be established if it was shown that Burgess had said words to the effect of, "I'm going to get you". Although the Crown today asserts that the basis of the charge is somewhat wider in that it relies not only the words but the contact in approaching Hooke in the way alleged. 8. Secondly, there is a suggestion that the complainant and other prosecution witnesses have a motivation to lie given the context in which these events arose. Burgess was an estranged husband/son-in-law/brother-in-law. Burgess and Phoebe were in mediation over their family law matters and had both had engaged lawyers. A number of factors were pointed to which suggested the possibility of fabrication including, 1. The decision to call police was only made following a private discussion between Phoebe and her father. It was not Hooke's decision to call the Police. 2. Phoebe spoke to her family lawyer before doing before calling the Police. 3. The most telling aspect of the evidence of both Phoebe and her father was that they denied having spoken to anyone else or sought advice before they spoke to police. It was not until they were confronted with telephone records that they admitted that there had been the contact with the outside parties, to which I have referred. 4. As Mr Boulten puts the significance of that evidence is not the fact that Hooke spoke to lawyers, but the fact that he sought advice about family law implications of making a complaint to the Police. He was unable to provide a clear answer about why he had not told the Police of that fact and that leaves open the real and substantial possibility that he was fabricating his evidence in relevant respects, including critically that Burgess had made the relevant threat. 5. Before they went to the Police station Hooke says that he spoke to Ben Mitchell, a public affairs consultant or media advisor to get a handle of what was likely to be the consequences of this story breaking, which lends support to the submission that Hooke was more focused on a broader agenda rather than a genuine desire to bring Burgess to justice. His answers as to why Doolan was engaged were less than convincing. He said, "I engaged Doolan to give me advice on matters that were before my family and that affected me". 1. Mr Boulten further puts that there were grounds for a motive for Hooke to lie which found its foundation in the evidence of Burgess. Hooke sought to portray Burgess as the aggressor. Burgess in effect denied that as soon as he sent a text to Phoebe at 4:32pm and in his first conversation with the Police at 7.30pm on that evening. He also proffered a short version which was consistent with his innocence. 2. There was also evidence that Hooke and his daughter Phoebe had cooperated with journalists from The Australian newspaper to the extent that the journalists had crafted statutory declarations to support the publicationof an article in the newspaper in October 2020, shortly before the hearing of this matter, and after the hearing date had been fixed, containing comments which were, it is accepted, very critical of Burgess. 3. Mr Boulten also submits that there are aspects of the complainant's evidence which are unreliable and that the photographs, exhibit 15 in particular, which contradict aspects of his evidence. 4. I dealt with the evidence of the daughter, Harriet, as being of little, if any, assistance. 5. The Magistrate took the view that the fact that Burgess had taken photos as he was leaving indicated some form of consciousness of guilt. Burgess says that he took the photographs to show that the children had been left unattended and were walking and were crawling outside. The Magistrate said, "Is that not an endeavour to arm himself with material knowing that his behaviour had been wrong, that he had overstepped the mark in his abuse and threats to the father-in-law"? 1. There is no basis for that proposition in the evidence in my view. The reason given by Burgess for taking the photographs appears to be a credible version. 2. While the Magistrate ultimately acknowledged the failure by Phoebe and her father to acknowledge their contact with the lawyers in cross-examination, there was no consideration by the Magistrate of a reason that they might have had for doing so. In the context of the contact with the media leading to the later articles, and the significant contact with advisors over the course of the evening before the Police statements were made, this was a matter of some concern. 3. In written submissions Mr Boulten put that the onus of proof had in effect been reversed. That is the question is not whether the hesitation of Phoebe during the triple-0 call illustrated that Hooke had not been intimidated, the question was whether his Honour could be satisfied beyond reasonable doubt that Hooke had in fact been intimidated. 4. Mr Boulten put during oral submissions a further reversal of directions in this context, in relation to character. There is a distinct flavour of the Magistrate's reasons that there was what might be colloquially called a reverse character direction. The Magistrate spoke in glowing terms of Hooke and his family having crafted a lovely home in the Southern Highlands and that they were in effect fine people, and gave Burgess, on my reading of the reasons, no weight to the undoubted good character of the appellant beyond giving himself the direction as to good character. 5. Of course there are two aspects of a character direction, it being acknowledged that Burgess had no prior convictions. The first is that a tribunal of fact may reason that a person of good character is less likely to lie or give a false account in giving evidence. Secondly, the fact that a person is of good character is relevant to the likelihood of him having committed the offence. Of course none of that means that good character provides him with a defence, but beyond stating the test, it does not appear to me the Magistrate bore that in mind when forming his views as to the possibility of Burgess's version being true. 6. There was evidence that Burgess had consumed four schooners of Great Northern Beer at the Royal Hotel between 12noon and 1.15pm. An expert report showed that at the time of the alleged offence, at 4.05pm, his BAC would have been close to zero and it was not a factor in the offending. Yet the Magistrate for no apparent reason suggested that drinking alcohol before having contact with his children was not the wisest decision. 7. Having said that he rejected Burgess' version the Magistrate said, "I observed Mr Burgess at one point during a torrid morning in the witness box showing emotion. His eyes appeared watery. The words of advice from his father-in-law on Wednesday 16 October 2019 that he needed to love himself first, and then bursting into tears, rang powerfully true, as did Mr Hooke's evidence from beginning to end. Mr Hooke is an impressive, believable and consistent witness. I do not doubt his evidence, his evidence was clear, concise and sequential. His daughter Harriet Hooke was also a sincere, believable witness." 1. The Magistrate then concluded by saying that, "Burgess's evidence was changeable" before concluding beyond reasonable doubt that Burgess had committed the offence. 2. Evidence from Hooke and his daughters as to Hooke's condition or appearance after the exchange could only have been used, as Mr Boulten submits to bolster the prosecution case if the Magistrate had been satisfied that his physical state was consistent only with Burgess having made a threat. There is a basis for Mr Boulten's argument which was put before the Magistrate and repeated here, namely that this was an argument between two grown men at the end of an access visit and that did not constitute intimidation. 3. I accept the submission that the Magistrate appeared to determine credit findings based primarily upon witnesses sticky doggedly to their account or not or whether they made appropriate concessions. The approach of the Magistrate appears to be a perverse approach to the assessment of credit of a witness. 4. The Crown submitted that Burgess' evidence was effectively challenged and is a version of events that should not be accepted as reasonably possible. For the reasons that I have outlined briefly here, I do not accept that submission, nor do I accept the factors pointed to as purported compliance with a Liberato direction as an indication that the Magistrate properly answered and dealt with the test which should have been posed. 5. In conclusion, notwithstanding the advantage that the Magistrate had of seeing the witnesses, my firm view on the evidence is the Crown case was not established beyond reasonable doubt as the Crown has not eliminated a reasonable possibility that the version given by Burgess was true. 6. For those reasons the appeal will be upheld and the conviction and sentence orders imposed by the Magistrate will be set aside. Note – These extempore remarks were revised without access to the court file.