District Court New South Wales Medium Neutral Citation: Furcic v R [2023] NSWDC 397 Hearing dates: 17-18 May 2023 Date of orders: 18 May 2023 Decision date: 18 May 2023 Jurisdiction: Criminal Before: Neilson DCJ Decision: I set aside the conviction recorded and any penalty imposed by the Local Court at Sutherland on 1 September 2022, and the final ADVO made by her Honour. Catchwords: CRIME – APPEALS – Conviction appeal – Assault offence – Onus of proof – Case dependant on testimony of appellant and complainant. Legislation Cited: Nil. Cases Cited: Fennell v R [2019] HCA 37 Hewitt v R [2021] NSWCCA 227 Liberato v The Queen (1985) 159 CLR 507 Moir v SAS Trustee Corporation (2023, unpublished) Robinson v The Queen (1999) 197 CLR 162 Texts Cited: Nil. Category: Principal judgment Parties: Appellant – Dennis Furcic R – Crown (NSW) Representation: Appellant – Mr McGorey R – Ms Ervin File Number(s): 2021/00256311 Publication restriction: Nil. Decision under appeal Court or tribunal: Local Court of New South Wales Date of Decision: 1 September 2022 Before: Carney LCM File Number(s): 2021/00256311 Judgment Ex tempore 1. HIS HONOUR: This is an appeal from a conviction recorded by Carney LCM sitting in the Local Court at Sutherland on 1 September 2022. By Court Attendance Notice listed for hearing before the Local Court at Sutherland on 8 June 2022, the Appellant was charged that between 9.45pm and 10.15pm on 7 September 2021 at Carlton in this State that he did assault Anela Ameti, thereby occasioning actual bodily harm to her. As is clear from the pleading in the Court Attendance Notice, the event occurred on 7 September 2021. The hearing was conducted before her Honour on 1 September 2022, almost one year later. There was a back-up charge of common assault, but since her Honour found that the Appellant inflicted actual bodily harm on the complainant, her Honour did not need to deal with that allegation. 2. The first thing I wish to say is this, I know Magistrate Carney quite well. I first met her when she was in the Children's Court at Campbelltown when I was sitting in the criminal jurisdiction of this Court in that town. I have had a number of dealings with her subsequently. I believe her to be a very thorough and learned magistrate. That is demonstrated in this case by the fact that her Honour's reasons for judgment comprise 30 pages. There are many reasons for judgment given in recording the conviction. However, my respect for her Honour, which is unfeigned, cannot interfere with my exercising the duty which the law imposes upon me. 3. The context in which the charge was laid needs to be borne in mind. The appellant and the complainant formed a close relationship in 2000. They have been living together since 2003. Their relationship could be referred to as a de facto marriage. They have two children, the elder daughter was five years and three months old and the younger daughter was four years old at the time that the allegation was made. They had stopped their intimate relationship. However, they were still living together under the same roof but not as either close personal friends or as friends but more as the parents of their children. 4. There were family law proceedings between them. They had bought the residence where the alleged assault occurred in Carlton in 2009. By at least July 2021, the complainant had commenced a new relationship with a man who can be described merely as Sam. 5. In the past, there had been complaints made by the complainant about the appellant. On 10 November 2017 the complainant reported to the police that the appellant had pulled one of their daughters from her arms and said that he was going to see his mother. It was alleged by the complainant that he used his right shoulder to push her into the refrigerator as he walked away. Police attended the residence at the request of the complainant at 7.30pm that evening. She made a complainant of having a sore right shoulder. However, there was no visible injury that could be seen by the police. A provisional apprehended domestic violence order was taken out for a short time. That was withdrawn after a number of months. No charge was laid against the appellant. They continued to live in the house thereafter. 6. In cross-examination this evidence was given about an incident that occurred on 31 March 2019: "Q. There have been other times when you've called police to the phone, for instance on 31 March 2019, you say that the police came to the house after you texted a neighbour and said that you were scared - if anything happens to you, tell the police to get hold of your phone. Do you remember that? A. Yes, I did. Q. And the police then arrived at the house and it's true that you confirmed to them that you were worried he was going to go to Bosnia or something with the children? A. Yes. Q. It was clarified with you that there was no assault. There was no threat made to you at that time by Denis? A. There was a threat made. Q. But when the police wanted to speak to Denis, you were reluctant to let them do that. You said, 'Don't - don't worry about it. Don't do that?' A. Look, it's been four years ago. I really don't remember. Q. And you were aware that police took no action on that occasion, did they? A. They didn't take Denis away. Q. They didn't apply for a restraining order? A. No. Q. And that's because you confirmed, essentially, that you weren't fearful of him? A. I did not confirm that. I didn't say that. Q. And the police, you are aware, actually asked to see the children to make sure they were okay? A. Yes. Any other instance when police comes over, always they do welfare check on children. That's correct. Q. So the police left, and there was no further action taken by them on that occasion? A. No. Q. That was, again, you making a false complaint of concern to the police to harass Denis, wasn't it? A. That's not correct. If somebody is fearful and has been psychologically and verbally abused, they do have a right to call the police to do the welfare check." 1. On 15 July at 5.25pm there was another complaint made by the complainant to the police. COPS event E81045970 was exhibit 6 in the Local Court. The COPS entry contains this narrative: "The [appellant] and the [complainant] have been in an intimate relationship for about 12 years, have two children together and are currently going through a separation. The two are still living at the above address together with their children, however the [complainant] has a new partner and there is conflict within the home over the separation and dissolution of their relationship. Neither the [appellant] or the [complainant] want to move out of the family home and this, and other financial issues regarding the separation have caused the two parties to have on-going verbal disputes. The [complainant] believes that the [appellant] to have mental health issues as he has a family history of schizophrenia and depression, however the [appellant] is showing no signs of symptoms of any mental health issues. When pressed on the information given in the CAD message, the [complainant] admitted it has been several years since he had displayed this behaviour. On 15 July 2021 the [appellant's] solicitor sent the [complainant] a letter stating that she should leave the family home as she has a new partner, and scheduling mediation for 1 August 2021 between the two parties as part of formalising their separation. The [complainant] called police reporting the above behaviour of the [appellant]. Police spoke with the [appellant] and he appeared rational and fully capable of caring for his two young children. The [complainant] stated she didn't want an AVO and had no fears for her safety. The [complainant] was asked what happened to make her contact police today, and she kept telling police that the [appellant] needed to be assessed for mental health problem. The children were sighted and spoken to by the police. No offences detected, no new further action required". 1. There was a complaint made by the complainant on 21 July 2021 that the appellant may have sexually assaulted their daughters. That complaint was made the day after the appellant called police to the residence after there was an argument there with the complainant's partner, Sam. The children and the appellant were interviewed and the case closed without further action. No ADVO or any limitations were placed on the appellant's contact with his children. 2. In cross-examination the complainant admitted that she left the children in his care, alone and unsupervised, after raising the allegation that he may have sexually assaulted their daughters. That action is clearly inconsistent with the suspicion that she told the police about. In evidence the complainant also admitted that the daughters had been interviewed by a JIRT team, to which she referred it as the Justice Department. 3. It is clear from the evidence that at times the verbal disagreements between the appellant and the complainant were acrimonious. 4. Her Honour in the Local Court spent some considerable time considering exhibit 3. Exhibit 3 was a recording made by the appellant on his mobile phone of the conversation that he had with the complainant immediately before and after the allegation of assault that was made by the complainant on 7 September 2021. One can hear the tone of the conversation deteriorating over time and its volume increasing. 5. There was a dispute about the complainant putting a child lock on the iPad used by one of their daughters because she believed that her daughter's access to Facebook was "inappropriate". However, the appellant's position was that he was with the daughter when she accessed Facebook and he asked the appellant to remove the block so that he could use the child's iPad after she had gone to bed to enable him to access Facebook for himself. The complainant refused to do so and hence the verbal dispute developed, which intensified over a period of time. 6. Immediately after the complaint to the police after the alleged assault, the police turned up at the family home and spoke to both the complainant and the appellant. The complainant made a DVEC at her home. The appellant provided his explanation to the police orally but was then arrested and taken to the police station where he provided an electronically recorded interview with the police. 7. The essence of the dispute in the Local Court was essentially the complainant versus the appellant. The appellant was the accused. He bore no onus of proof at all. Her Honour pointed out that the phone call made to the police gave a consistent history of what had occurred. The DVEC that she made was consistent with that complaint and there was some photographic evidence to support it. 8. The photographic evidence was exhibit 2 in the Local Court. There were two photographs taken by the police on the evening of the assault, 7 September 2021, a photograph made by the complainant herself on 8 September 2021, and a further photograph taken by her on 9 September 2021. In the second photograph of exhibit 2, the one taken on 7 September 2021, one can faintly see some marks on the anterio-lateral border of the mid forearm, which are more clearly seen in the photograph taken on 8 September 2021. What initially concerned me was that there was, what appeared to me to be, a bruise in the antecubital fossa and distal to it, but that, I have been told from the Bar table, was some form of rash that the complainant had. Some finger marks can be seen, however, on that photograph. I am unable to discern any marks at all in the photograph taken on 9 September 2021. However, in so far as there were still marks visible the day after the assault, I agree that it was open to her Honour to find that there was actual bodily harm. 9. Her Honour's approach to the evidence of the complainant relied very heavily on what she perceived in exhibit 3, the audio recording, and what she saw in the photographs and the contents of the DVEC. However, the police prosecutor in the Local Court, Sergeant Nolan, said this which is recorded on p 50 of the transcript: "I'd have to accept that there is some credibility issues there. HER HONOUR: And what are those, sergeant? PROSECUTOR: I stopped writing half of it down after a while, but essentially, there are a number of issues regarding whether she knew that a recording was being made or not. Clearly, according to exhibit 3, she was well aware that a recording was being made on the night. In her evidence she says, quite adamant, that she was not. She denies mocking or laughing during the conversation on 7 September with the defendant. Again, clearly, in the audio she was doing that. I noticed on a number of occasion that she said she had some issues with memory, it was a long time ago, she couldn't remember certain things, that's fine. And just because there is inconsistencies, doesn't mean the allegations were not true. She denies spending time away from the house. She later changed her evidence to say that she did, from time to time, spend time away from the house. She denies the comment about sending the iPad oh-oh, sorry, the comment about the mother with the iPad, showing it at a certain location. Clearly, exhibit 3 says that she did say that. She says that she was fearful for the children on the night of the 7th of September, and yet she didn't mention anything to do with that on the DVEC, other than her evidence today. Again, that's a possible, given that she's been so long and she remembers certain things after the incident. She says that during the 7th September, the defendant threatened to smash the iPad. Again, the recording, exhibit 3 shows the alternative, and doesn't show the defendant at all threatening to smash the iPad. But again, just because there's some inconsistencies with her evidence or her recollection of the evidence, doesn't mean that the assault didn't take place. Her evidence and the DVEC and her evidence in Court today was clearly - I'd say it was detailed in regards to what she alleges took place." 1. There were numerous inconsistencies in the complainant's evidence in the Local Court. Some of them cannot be explained by the, the effluxion of time or the failure of memory. After all, this event was discussed in Court just under a year after it occurred. The complainant's evidence in chief consisted largely of the playing of the DVEC. 2. What, I may ask, did her Honour make of the evidence given in the Local Court by the appellant? On p 71 of the transcript, her Honour is recorded as saying this: "...I accept in relation to the accused that he was co-operative with the police. He gave a version at the home. He gave a version in his recorded interview. He didn't have to. He was cautioned as to that, but he wanted to do that and I've taken that into consideration. And of course, his out of Court evidence is [in] the main consistent with his in-Court evidence. Under cross-examination, Sergeant Nolan noted a discrepancy or difference in relation to what he told police out of Court relating to the physical contact. The physical contact seemed to be a pass and a push by her towards him, that he said was a direct question under cross-examination. 'Q. You say he hit you in the ribs? A Somewhere when we pass each other around the bench area and the door exit.' In relation to that, it was put to him: 'She used her elbow to push you off?' and he said, 'I disagree'. So he says it was a deliberate act of violence towards him. That she wasn't using her elbow. And I accept [in] both their evidence, the contact here that she had her elbow, and that it did make contact with him, but each day the different version as to purpose. He agreed that he was angry because of the iPad and of course, his anger can be seen to be escalating as it relates to his tone, accompanied by certain words and representations to her over some petty matters before the actual allegation of assault upon her. There is a dispute as to whether she had one or two iPads in her hand. And in relation to it, denied she was walking from the bedroom into the hallway, and he followed her." 1. This was a case in which the appellant, through his counsel, asked for a Liberato direction. Her Honour refers to it at the foot of p 71 and the top of p 72 of the transcript. In the main she quoted from the judgment of Brennan J in Liberato v The Queen (1985) 159 CLR 507 at 515. However, after making that quotation, her Honour said this: "I have regard to that important decision and have regard to the process of analysis as it relates to those considerations". However, her Honour took the matter no further. The standard Liberato direction given to juries is this: "First, if you believe the accused's evidence (which may include only what said gave in his interview with the police) you must acquit. Second, if you find difficulty in accepting the accused's evidence but think it might be true, then you must acquit. Third, if you do not believe the accused's evidence, then you should put it to one side. Nevertheless, the question will remain: has the Crown, upon the basis of evidence that you do accept, prove the accused's guilt beyond reasonable doubt." That threefold analysis of Liberato can be found in the judgment of Payne JA with whom Garling and Wright JJ agree and Hewitt v R [2021] NSWCCA 227: between [61] and [64]: 61 On 1 October 2019, senior counsel again sought "the full Liberato direction". On appeal, the applicant repeated the submission that the jury should have been told in terms that "if they did not accept the applicant's version, but considered it might be true, they must acquit" and that the omission properly to explain that matter occasioned a miscarriage of justice because the applicant was deprived of a chance fairly open to him of being acquitted. 62 I am unable to accept the Crown's submission that the trial judge's directions, considered fairly and as a whole, left no room for the possibility of any misapprehension by the jury of the matters referred to by Brennan J in Liberato. I do not agree that the trial judge's failure to adopt the specific form of words used in the Criminal Trial Courts Bench Book, drawn from Liberato and De Silva, was permissible. 63 The full Liberato direction has three components: (1) if you believe the accused's evidence (if you believe the accused's account in his or her interview with the police), you must acquit; (2) if you do not accept that evidence (the accused's account) but you consider that it might be true, you must acquit; and (3) if you do not believe the accused's evidence (if you do not believe the accused's account in his or her interview with the police), you should put that evidence (the accused's account) to one side. In that third case, the question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt? 64 The instruction given by the trial judge did not explain those matters sufficiently. There was an error of law with the result that the trial miscarried." 1. Her Honour did not say whether she rejected the appellant's evidence, whether she disbelieved him. She does not say whether, nevertheless, it was possible that he was telling the truth, that his evidence may have raised a reasonable doubt and therefore whether the Crown had failed to prove its case beyond reasonable doubt. 2. Her Honour appears to have largely excused the inconsistencies in the complainant's evidence by referring to Fennell v R [2019] HCA 37 and cited from [81] this: "The court may… take into account... the realities of human experience, including the fallibility and plasticity of memory, especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory. The Court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability." Her Honour then said this: "I accept where that witness has said they had difficulty in recall. That it wasn't because she wasn't telling the truth, she had difficulty in recall and I accept the truth of her explanation as it relates to omission in her memory given the passage of time." Her Honour then referred to Robinson v The Queen (1999) 197 CLR 162, but that is merely a recitation of a standard Murray direction, a direction derived from R v Murray (1987) 11 NSWLR 12 in what was said by Lee J at 19E. 1. The problem here is that not all of the inconsistencies are explicable by a lack of memory. In a civil case recently, Moir v SAS Trustee Corporation (2023, unpublished), I had cause to cite many cases in which the problem about the fallibility and plasticity of human memory are collected. That case involved a delay not of merely 12 months, but over 30 years. Here, the delay was not of some great period of time and, for example, a delay or a failure of memory does not explain conduct that the complainant denied, such as having concerns about the health and welfare of her daughters, when she left them in the sole care and custody of the appellant for extended periods of time, especially during the COVID 19 pandemic. 2. As her Honour has not dealt properly with the Liberato direction, I must. The appellant's evidence was consistent with what he told the police, both at the home and later in the early hours of the following day in his electronically recorded interview. It must be recalled that the dispute arose in the context of contested proceedings concerning a matrimonial dispute, a contested proceedings relating to both property and parental responsibility and contact with the children, where earlier allegations had been made that were of no substance and where the complainant knew that unless she could show some evidence of being hurt by some mark on her body, that her allegation may not be believed. 3. Equally, it is clear that the complainant knew on 7 September that she was being recorded by the appellant. At the time she was talking to Sam on the telephone. She then in her evidence says that she was not aware that he was recording her, but that is quite untrue. The fact that she knew he was recording may explain why she became somewhat emotional after what is alleged to be the assault, but one cannot hear on the recording anything consistent with some physical interaction between the pair. Equally, the marks could have been self-inflicted so that the complainant would be believed by the police. 4. The evidence of the appellant at least raises a reasonable doubt and, therefore, the Crown has failed to satisfy the heavy onus of proof which weighs upon it to establish that the appellant was guilty of the offence alleged. For those reasons I set aside the conviction recorded and any penalty imposed by the Local Court at Sutherland on 1 September 2022. It follows that I set aside the final ADVO made by her Honour. 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 September 2023