District Court New South Wales Medium Neutral Citation: Johnson v R [2022] NSWDC 299 Hearing dates: 21 June 2022 Date of orders: 21 July 2022 Decision date: 21 July 2022 Jurisdiction: Criminal Before: Scotting DCJ Decision: (1) Appeal allowed in part. (2) The conviction for sequence 1 and the penalty imposed by the magistrate are set aside. (3) I will hear the parties on the sentence appeal relating to sequence 3. Catchwords: CRIME — Appeals — Appeal against conviction Legislation Cited: Crimes (Appeal and Review) Act 2001 Evidence Act 1995 Cases Cited: AG v Director of Public Prosecutions [2015] NSWCA 218 Barca v The Queen (1975) 133 CLR 82 Charara v R [2006] NSWCCA 244 Gianoutsas v Glykis [2006] NSWCCA 137 Lumney v Director of Public Prosecutions [2021] NSWCA 186 McNab v Director of Public Prosecutions [2021] NSWCA 298 R v Anderson [2002] NSWCCA 141 R v Coe [2002] NSWCCA 385 Sanchez v R (2009) 196 A Crim R 472 The Queen v Baden-Clay (2016) 258 CLR 308 Category: Principal judgment Parties: Samuel Johnson (Appellant) Office of the Director of Public Prosecutions (ODPP) (Prosecutor) Representation: Counsel: J Lang (Appellant) Solicitors: ODPP (Prosecutor) Payten Ryan Le (Appellant) File Number(s): 2021/121196 2021/116905 Publication restriction: None Decision under appeal Court or tribunal: Downing Centre Local Court Jurisdiction: Local Court Date of Decision: 14 February 2022 Before: Magistrate Bartley File Number(s): 21/121196 Judgment Introduction 1. On 14 February 2022, Samuel Johnson, (the appellant) was convicted of common assault (sequence 1) and destroying property (sequence 3) by a magistrate sitting at the Downing Centre Local Court. The appellant appeals as of right against those convictions. 2. The appellant and Elizabeth Karas (the complainant) had been living together in a domestic relationship since about July 2020 at a unit in Mascot. In the period leading up to the offences the relationship was troubled. There had been arguments that were leading to a break-up, which eventually occurred on 12 April 2021. 3. On 6 April 2021, the appellant took the complainant's car without telling her where he was going and leaving his mobile telephone and licence at home. She eventually contacted his mother because she was worried about him. It was common ground that when the appellant returned home that he was angry that the complainant had contacted his mother, who had in turn contacted him. The complainant alleged that the appellant threw the car keys at her and that they struck her on the right cheek, without causing an injury. The appellant then left the unit for about two hours. When the appellant returned the complainant alleged that he went to the balcony of the unit and started throwing things off it. At some time a ceramic pot containing a plant was broken. The appellant broke it into smaller pieces and threw the pieces off the balcony into a vacant lot next door. The pot was the only item identified in the charge. Evidence was led of the appellant throwing other things off the balcony, that were not identified with any precision, as relevant to the issue of his state of mind at the time at the time. 4. The complainant went to the Police on 26 April 2021, at which time her statement was electronically recorded (DVEC). 5. On 30 April 2021, the appellant attended Eden Police Station where he was arrested and charged. He exercised his right to silence and declined to be interviewed about the allegations. 6. The appellant gave evidence before the Local Court stating that when he returned home on 6 April 2021, that he threw the car keys on the table and then left for about two hours. When he returned the argument continued. He had already commenced packing his things to move to Eden. His evidence was that after he finished packing his bags, he proceeded to the balcony to pack "stuff away so that Elizabeth would not have to deal with it" after he left. His evidence was that he disposed of a number of pot plants by throwing them off the balcony into the vacant lot, which he described as a "major waste area". During the course of emptying the pot of a dead plant and the dirt, he dropped the pot on the balcony causing it to break. He then disposed of the pot by breaking it into smaller pieces and throwing them off the balcony. The appellant raised his good character in the Local Court. The Relevant Law 1. The applicable principles to be applied in determination of the appeal are as follows. Nature of the appeal pursuant to s 18 Crimes (Appeal and Review) Act 2001 1. Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31]. 2. The principles governing appeals from judges sitting without a jury apply in that the appellate judge is to form his or her own judgement of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record: Charara v R [2006] NSWCCA 244 at [17]-[22]. 3. Whilst the magistrate's reasons are not part of the certified transcripts referred to in s 18(1), recourse may be had to them since the appellate function could not properly take place without reference to them: Charara [23]-[24]. 4. The Court is obliged to give the judgment which, in its opinion, ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23]. 5. An appeal to the District Court under s 18 requires the demonstration of factual, legal or discretionary error to succeed: McNab v Director of Public Prosecutions [2021] NSWCA 298 at [24] (Bell P) and [83]-[90] (Basten and McCallum JJA). 6. The term "error" has no precise meaning. It refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgment of the trial judge will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of "error" in the ordinary meaning of that term: AG v Director of Public Prosecutions [2015] NSWCA 218 at [34] (Basten JA) and McNab at [88] (Basten and McCallum JJA). 7. The requirement that the appellant demonstrate error does not reverse the onus of proof in that the prosecution, at all material times, bears the onus of establishing guilt beyond reasonable doubt: McNab at [26] (Bell P) and [91] (Basten and McCallum JA). 8. An appeal under s 18 does not require the District Court to undertake a complete review of the whole of the evidence and form its own view as to the appellant's guilt regardless of the issues raised by the appellant. The extent of the review will depend on the circumstances of the case and the kind of error alleged: Lumney v Director of Public Prosecutions [2021] NSWCA 186 at [44] (McCallum JA). Cases based on circumstantial evidence 1. In Barca v The Queen (1975) 133 CLR 82 at 104, Gibbs, Stephen and Mason JJ stated the relevant principles as follows (citations omitted): When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen; see also Thomas v The Queen. 1. In The Queen v Baden-Clay (2016) 258 CLR 308, the High Court stated at [47]: For an inference to be reasonable, it "must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence" [Peacock at 661 and Barca at 104] (emphasis added). Further, "in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence"[R v Hillier (2007) 228 CLR 618 at 638] (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal [Hillier at 638]. Analysis of the magistrate's reasons 1. The magistrate gave an ex-tempore judgment immediately after the conclusion of the evidence and addresses and some allowance needs to be made for that. 2. The magistrate stated that the complainant's DVEC was spontaneous evidence that had a detailed ring of truth to it and he accepted her evidence. 3. The magistrate inferred from the evidence that the appellant had been at a hotel and that he was drinking at home after returning the second time, that his conduct at the time of the offences was "alcohol-fuelled". I pause to note that it was not put to the appellant in cross-examination and not advanced in the submissions of the prosecutor that the appellant had consumed alcohol at all, or to any significant extent. In the circumstances, it was not open to the magistrate to find that the appellant's conduct was driven by his consumption of alcohol. 4. The magistrate reasoned that the complainant's evidence as to the keys hitting her in the face should be preferred because her allegations in the DVEC were "near contemporaneous" whereas the appellant's denial came nine months later at the hearing "for the first time". The appellant's evidence came for the first time at the hearing because he exercised his right to silence. The adverse inference drawn by the magistrate as to the timing of the appellant's denial, in a number of places in the reasons, offended s 89 Evidence Act 1995: R v Anderson [2002] NSWCCA 141 at [30], R v Coe [2002] NSWCCA 385 at [42]-[46] and Sanchez v R (2009) 196 A Crim R 472 at [58]. 5. As to the prosecution case on the damage or destroy property, the magistrate noted that it was a circumstantial case, stating at T76 lines 25-43: Applying a century old case law from Peacock through to Shepherd and onto Baden-Clay, reasonable doubt can be extinguished cumulatively by the circumstances, to whom we have some degree of drinking with some significant degree of intoxication. I no not infer great – I am not able to but there is two rounds of drinking at the pub where his parents found him and then back at the unit and then anger, great anger which continued. Manifested itself initially and throwing the car keys at her, and so 20 things thrown out of the balcony. So yes, she did not see the moment of the pot plant breaking. It boils down to recklessness, was he reckless in anger having lost his self-control? A pair of shoes were thrown over. That was not challenged. She said she had found the pot, she had brought it home, the accused admitted she brought it home and she said the property was theirs, so the accused there was no legitimate explanation for starting to deconstruct the pot, getting the plant or the dirt out of it, even if it was dead, it was hers as much as his. The more likely explanation is anger, with the other 19 items, having contacted his parents which is outrageous. 1. The magistrate referred to the independent evidence of the complainant's friend, Georgina Lancaster. The effect of Ms Lancaster's evidence was that the complainant telephoned her and made a contemporaneous complaint of the appellant throwing the car keys at her and them hitting her in the face. During the course of this call, Ms Lancaster heard the appellant call the complainant a "psychotic bitch". The complainant then later made a video call to Ms Lancaster at the time when the appellant was on the balcony and Ms Lancaster saw the appellant throwing pieces of the broken pot and dirt off the balcony for about 5 minutes. 2. The magistrate stated "Ms Lancaster's evidence is very powerful and tends to extinguish every reasonable doubt about the two charges…" He found Ms Lancaster's evidence to be "completely honest". It should be noted that Ms Lancaster's evidence was not challenged in cross-examination, or by the appellant's case, except to suggest to her that she was not privy to the entirety of the argument. A proposition which she accepted. 3. The magistrate found that the appellant's "reliability was in the poor to mediocre range and he framed his evidence to suit himself". The magistrate criticised the appellant's evidence by reference to the use of the term "waste site" when in fact it was not a place where he could deposit waste. The magistrate characterised his evidence as implying that "he accidentally dropped" the pot. 4. The magistrate ultimately concluded that he was satisfied beyond reasonable doubt that his intention was beyond mere negligence and that he was reckless with the pot. 5. The magistrate made no reference to the appellant's good character or how it should be taken into account in his decision. 6. With respect, the magistrate's reasons as to the circumstantial case misstate the law and adopt a novel approach of using facts to "extinguish reasonable doubt" which appears to me to be application of the facts in a piecemeal approach and contrary to authority. They were also based on a finding as to the plaintiff's state of intoxication that was not open to the magistrate and offend s 89 Evidence Act 1995. I am satisfied that the magistrate's decision was affected by error and that the case falls to be decided on the basis of the evidence before the Local Court contained in the exhibits and transcript. Consideration 1. As to the common assault offence, the complainant gave an account in the DVEC of the appellant throwing the car keys at her and that the car keys hit her on the right cheek. On the DVEC, the complainant came across as emotional but reliable. There was nothing about what she said on the DVEC or how she said it that caused me to doubt her veracity. 2. There was also evidence of her contemporaneous complaint of that allegation to Ms Lancaster. Ms Lancaster's evidence on that point was not challenged. This is an important piece of evidence that provided cotemporaneous corroboration of the complainant's account. 3. In the Local Court the appellant raised his good character. He is entitled to be accepted as a person less likely to commit an offence and as a person less likely to give a false account to the Court. 4. The appellant accepted that he was angry about his parents being contacted and accepted that he threw the keys, but not at the complainant. 5. Taking into account all of the evidence, I am satisfied beyond reasonable doubt that the appellant threw the car keys at the complainant in anger and that they hit her in the face. Accordingly, the appellant's conviction entered in sequence 3 is confirmed. 6. As to the destroy property offence, the prosecution case is a circumstantial one. The appellant raised in his case that he broke the pot accidentally while trying to empty the dead plant and dirt from it. The complainant did not see the pot break. She heard it crack and asked the appellant what happened. He told her that he had broken the pot accidentally and she recorded what he said in her statement to the Police. 7. The evidence suggested that the pot broke on the balcony as a result of it being moved. I infer that the pot, when it was full of dirt, was too heavy to throw off the balcony. The pot and the dirt in it, where only thrown off the balcony after the pot was broken and in pieces. There was no evidence of any words or conduct by the appellant at the relevant time when the pot broke, other than he said it was an accident. It can be accepted that he was angry and emotional by reference to what had occurred on the day and that he had thrown the car keys at the complainant some hours earlier. 8. Once the pot was broken, it had to be disposed of. Whilst perhaps not civically responsible, throwing the broken pieces off the balcony did not constitute the offence as charged. Similarly, his intent in relation to the other items is of little significance. Even if he intended to throw the other items off the balcony in anger, it does not mean that he broke the pot in anger. 9. The appellant's explanation for doing anything with the pot was unconvincing. It seems odd that he would bother to choose that time to assist the complainant in moving out of the unit by doing what he did. However, the fact that I do not accept his explanation is insufficient to establish the prosecution case and I must put his evidence to one side and consider if the prosecution has proven the case to the criminal standard. 10. In considering this offence, Ms Lancaster's evidence does not assist much and it was for the most part unchallenged by the appellant. 11. Having conducted an independent review of the evidence, it is reasonably open to find that the appellant broke the pot accidentally and that he did not have the requisite intent to commit the offence. Accordingly, he is entitled to an acquittal on sequence 1. Orders 1. The orders I make are as follows: 1. Appeal allowed in part. 2. The conviction for sequence 1 and the penalty imposed by the magistrate are set aside. 3. I will hear the parties on the sentence appeal relating to sequence 3. ********* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 July 2022