Logue v R [2023] NSWDC 395

District Court New South Wales

Medium Neutral Citation: Logue v R [2023] NSWDC 395 Hearing dates: 22 September 2023 Date of orders: 29 September 2023 Decision date: 27 September 2023 Jurisdiction: Criminal Before: Priestley SC DCJ Decision: 1. Appeal allowed. 2. Conviction set aside. Catchwords: CRIME — Violent offences — Assault occasioning actual bodily harm Cases Cited: Filip Black v Regina [2017] NSWDC 326 Charara v R [2006] NSWCCA 244 Dyason v Butterworth [2015] NSWCA 52 KD v R [2020] NSWDC 237 Lunney v DPP [2021] NSWCA 186 Liberato v The Queen (1985) 159 CLR 507 R v Markuleski (2001) 52 NSWLR 82 Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1 Browne v Dunn (1893) 6 R 67 Fox v Percy [2003] HCA 22 Texts Cited: NA Category: Principal judgment Parties: Rex (The Crown) Aaron Logue (The Appellant) Representation: Counsel: Anderson for the Appellant

Solicitors: Jay for The Office of the Director of Public Prosecutions File Number(s): 2021/00224944 Publication restriction: N/A

JUDGMENT 1. On 5 August 2021 at about 12 noon, the complainant Nicole Cardow went to lunch with her partner, Aaron Logue, who is the appellant, and her sister Andree. Later that day at about 6.30pm the complainant suffered injuries, which she alleges were inflicted by the appellant, who was convicted in the Local Court of assault occasioning actual bodily harm. 2. Commencing at lunch and ending at about 6.30pm the complainant drank, on her own admission, 10 glasses of wine, 2 cocktails, and a sip of limoncello, a liqueur. She stopped drinking at about the time she left the appellant and Andree at a second restaurant at the hotel they were staying at, where, in less than an hour, 2 bottles of wine had been ordered, which is included in the 10 glasses of wine. She left the accused and Andree in what was something of a pique, as she described them as acting like idiots. Prior to the alleged assault by the appellant upon her, the complainant admits that she slapped the appellant. Following that there was a scuffle; this scuffle is alleged by the complainant to be an assault, the central act of violence being the repeated bashing by the appellant of her head against a tiled wall. The appellant says that did not occur and what did occur was that he took defensive action to ward off the complainant, in the course of which she came to fall to the floor twice. The mechanics of the alleged assault as described by the complainant involved, on one version, the appellant with his left hand grabbing the left side of her face and pulling the right side of her head into the tiled wall 4 or 5 times, thereby bashing it. More commonly if people are facing each other, to grab a person by their left side would sensibly be expected to be done by the person's right hand, though it is not impossible for it to be the left. So on this version of the alleged assault, the appellant reaches with his left hand, across to the left side of the complainant's face / head and pulls her head into the tiled wall. The evidence showed the place where this is said to have occurred. The wall in question is little more, if at all, longer than one metre, and is set back from the exit to the bathroom by a distance of ½ to 1 metre. Whilst possible, and doing the best without expert evidence, that is barely enough room to carry out the assault in the manner alleged. 3. The evidence of the complainant as to the actual attack is variable. In the DVEC it is: 1. Got in the room and it's really a very big blur. 2. There would have been shouting and yelling and screaming and pushing. And shoving from both sides. 3. The DVEC shows injury to the right side of the head and she says "grabbing this side of my head" when placing her left hand to the left side of her head; ie the allegation is he grabbed the left side of her head so that it was the right side of the head that was pushed into the tiles, consistent with the injury to the right side of her head. 4. Then I fell to the ground on my knees and then I. I remember falling over. 5. She said she was obviously bleeding and she remembers him with a wet towel wiping her head and she remembers blood on her pillow. 6. She was specifically asked "do you remember which hand he used when he pushed your face against the tiles?" And she answered "would have been his left hand because he pushed me but I was. I got pushed that way so because he was facing me yeah he pushed me like that"; on the DVEC the complainant raises her hand to the left side of her face and acts out being pushed with the right side of her head going to the wall, and with the appellant standing in front of her; and she actually uses her left hand; so a very definitive version. 7. The complainant does not know how she injured her nose, or her palm. 8. The complainant remembers blood being on her pillow; 9. Only late in the interview does the complainant add 10 wines to the 2 cocktails. Having disclosed that, the next question is to ask how she felt during the altercation and she gave this answer: I didn't feel I didn't feel… Like I was probably tipsy but I wouldn't say that I was blind drunk and I just yeah. I didn't feel like I was outta control completely or anything like that I just… But it's real sketchy. I don't know why it's… cause I remember leaving like I've been pretty much everything when I walked out that after he'd gone. I remember pretty much everything after that. I just don't remember a lot of that part of it 1. This last piece of evidence is significant. Sensibly read the complainant is saying that she remembers pretty much everything after the appellant had gone and she then adds that she doesn't remember a lot of that part of it, which I take to mean that part which occurred before he left. In other words as to the actual alleged offending the complainant's evidence is she just does not remember a lot of it. 2. To her credit the complainant volunteers that she slapped the appellant but as noted by the appellant's counsel that was a concession made only when asked a direct question as to whether she hit him; she did not volunteer it when she earlier said there had been pushing and shoving just as she had not earlier volunteered drinking beyond two cocktails. 3. I note also that in the DVEC she makes the allegation that the appellant took her phone, a charge which was not ultimately laid. Yet her evidence in that regard is that after the alleged assault she was on the bed asking where her phone was. She tried to page the phone from her watch unsuccessfully because that does not work if the phone is not in close proximity. At this stage the appellant has not left the room since first entering it. On the complainant's evidence it would seem that the phone was not in the room because the paging failed. A clear inference is that the phone was not in the room at the time the appellant entered it. The allegation being made by the complainant in respect of the phone seems likely to be baseless. In this regard I also note exhibit 7, a text message by the complainant to the appellant alleging that he has her phone and that he ripped her watch off her wrist. That is, that text, which on the evidence was sent the next morning, does not allege theft of the watch but rather simply that it was ripped off her wrist. 4. In evidence in chief at the hearing the DVEC recounted above was played. After the DVEC her evidence recommences by saying that her memory is probably a little clearer (ie on the hearing date of 15 March 2022) as opposed to 6 August 2021, the day after the alleged offence. At T13 there is a description of her hand and body movements demonstrating the slamming of her head against the wall. She described the tile as being vertical, with her body swaying from side to side so he could get momentum. The complainant gave evidence of ending up with bruises on one side which is where the appellant had hold of her. Based on exhibit 2 page 3 that bruising is the right side below her ear along the jaw line and down to the top of the neck; at T16 this is confirmed as being where he had his hand. Regrettably the word right or left is not used in this account at all by the complainant (as opposed to the prosecutor, see T20.24), though she did motion with her right hand, until without objection she was asked to look at Exhibit 2. Looking at page 1 the complainant says the injury to the top of her head which is on her left side was a result of the bashing of her head against the tiled wall. When asked is that the side of her head that actually impacted with the tiles she answered "yes", so that she is saying at the hearing that it was the left side of her head, not the right which she had asserted in the DVEC. As a matter of logistics this version makes more sense as there is not the wall behind where the appellant is alleged to have stood that might have caused some restriction on the original version. 5. At T13 at trial she stated that she "tried to slap him". This is to be compared to the evidence in the DVEC where she emphatically stated that she slapped him once. 6. It is at T17 and following that her evidence is given in relation to the 25 photos that constitute Exhibit 4. The evidence is that those photos are of the room in which the alleged offence occurred. The location of her head hitting the tiled wall is identified by reference to the photos at page 4, 10 and 11 and it is said it was where the towel racks are. Photo 23 is expressly referred to as showing blood on the pillow but to my observation neither a pillow nor blood can be identified from that photograph, and in any event the mark that can be seen is a speck, and is not what the complainant was referring to. There was no further evidence in chief as to these 25 photographs. In particular there was no evidence concerning photo 14 which would appear to be part of the bedclothes but on a quick look could almost be the wall though the better view would be bedclothes. That photo has some markings that appear to be smudges, and unlike page 16 are not red, but could possibly be blood. Page 16 shows what I infer is some blood and again would appear to be bedclothes. There is also blood on photo 17 and 18. Just what photo 22 shows is not clear but again most likely is bedclothes. On that basis there is no photograph which shows any damage of any kind to the wall. Nor is there any photo showing any blood on a pillow. Even if this analysis is wrong, there was no evidence identifying blood on a pillow beyond the reference to photo or page 23 of exhibit 4, which has been referred to above. Having looked at exhibit 4, it appears that pillows are on pages 2, 3, 8, 15, and maybe 17, and 18, which may be sheets. Photos 17 and 18 are the only photos showing any blood on sheets or a pillow, (if the speck on photo 23 is excluded) and it is a very small amount, describable as a smudge. Against this it should be noted at T76 the appellant agreed with the proposition that quite a significant amount of blood came from the wound on the nose, and of course the evidence is that he wiped blood up. There may have been more blood than the photos suggest, it having been wiped up, but the inference plainly is that it was the complainant's face that was wiped, and anything on the pillows or sheets would leave a stain, which is not evident. Just what the appellant meant by a "significant" amount of blood was not explored. 7. It is at pages 20 and 21 of the transcript where the evidence already referred to about the two injuries to the left and right side of the head is given. The complainant's attempt in evidence in chief at T20 and T21 to explain this was to first say she presumes they are the same mark because she only had it on one side, her head was hit on only one side, to then say maybe she had two sides, and to then state the obvious, that they are not the same as they are on different sides of her head. She could shed no more light on this. 8. In cross examination the complainant was asked about how the injuries to her head occurred and it was put that in her evidence in chief she had said the injuries to her head occurred by him moving his right hand to her right side of the face and her answer was "I don't know which side, whatever side the injury was on" (T23). 9. It was put that he was using his right hand and she replied "I don't know it depends on the side. Which side's my injury on" and "I wasn't looking at which side of my head it was" and "was it my left that was impacted with the tiles or my right? I'd have to view the photos. Obviously I don't have the injury any more so"; T23. 10. When asked to give evidence from her recollection rather than the photos she said she was pretty sure it was her right side and said "yes I guess so yes". When pressed to confirm this she said she was looking at the end result and when asked to work from her memory she said "I don't recall then"; T24. 11. Not only is this evidence variable, but it also displays a flippancy to the serious allegations that are being made. 12. The evidence identified with precision the wall the complainant alleges her head was bashed against. The manner of the description of the injury to the head, adopted by the magistrate, was in terms of the head being split and with the head bleeding. The image created by these terms is graphic. There was in fact no sign of any blood on the wall revealed by the evidence. The wall in fact is not a tiled wall and was described by the officer in layman's terms as harder than gyprock, though in the BWV the police can be heard to be knocking on the wall and it sounds very much like a non-structural gyprock wall. Not only was there no blood on the wall, there was no damage to it whatsoever revealed by the evidence. The wall also has 2 towel racks, the upper one of which may approximate where a head may have been pushed, but there was no sign of that. The photographic evidence of the injuries on the day of and the day after the suffering of the injuries shows what appears more like an abrasion, or at worst a minor cut; there is no medical evidence in the police case concerning this injury, but in layman's terms to describe the injury as a split head is an exaggeration. In terms of the severity of the injury, which is relevant in assessing the behaviour of the appellant who left the complainant in the room after giving her some assistance, including the wiping of some blood from her face, there was a very small amount of blood on the bed sheets where the complainant was left, which could be described as two or three smudges. 13. The appellant gave evidence. His version of events was rejected by the magistrate. The magistrate's reasoning to reject his evidence is summarised or concluded at T115 where she says, having given herself a good character direction and bearing in mind the appellant's intoxication was a lot lower than the complainant's: "because of his conduct straight after the event in leaving her in that position, because of the evidence I accepted from Andree about these-the length of time he was with Andree, the things he said to Andre, the things he did not say to Andree, the inconsistent accounts he gave to her, the raising of acting in self-defence only after it was apparent to him that he was being implicated in the assault and Nicole's injuries-there were numerous parts of-problems with me accepting the sworn evidence given by the defendant on many aspects about what happened during that physical altercation". 1. In the lead up to that conclusion her Honour had referred in particular to the appellant not stating to Andree in the 45 minutes that he was with her following the incident that he had been assaulted by the complainant and needed to respond in defence of himself (though he did say that on re-joining Andree he told her that the complainant had fallen over and that he had to clean up, wipe her face or something to the affect, which is what the complainant said he did) and that in the course of a phone call with Ms Oaks where both the appellant and Andree spoke to Ms Oaks the appellant was saying words to the effect of "someone must have done this to her"; that he had said that the complainant had hit him on the head (and I note the complainant admits to slapping him I infer across the head/face) but she then rejects his denial of saying to Andree that she could feel the lump on his head; and his denial that he was saying "I don't know what's happened and "I don't understand". 2. In my view this is a reasonable basis to reject the evidence of the appellant though it is notable that little if any consideration is given to why he might not be straightforward; that is why he might lie about this. His evidence was that he downplayed it to diffuse the situation. Nevertheless, it is a matter which impacts upon his credit. 3. Having rejected that version of events, her Honour then went on to find that she considered the evidence of the complainant sufficiently reliable to satisfy her that the police had satisfied the onus of proof beyond reasonable doubt.