New South Wales District Court CITATION: R v GREENFIELD [2008] NSWDC 391 HEARING DATE(S): 2 July 2008 EX TEMPORE JUDGMENT DATE : 2 July 2008 JURISDICTION: Criminal JUDGMENT OF: Berman SC DCJ DECISION: Appeal against conviction is dismissed and the conviction is confirmed On severity of sentence, without proceeding to a conviction the appellant is released on a bond under s 10 of the Crime (Sentencing Procedure) Act to be of good behaviour for a period of two years from today. CATCHWORDS: CRIMINAL LAW - Conviction Appeal LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 PARTIES: The Crown Bryan Dion Greenfield FILE NUMBER(S): DC 2008/12/0072 SOLICITORS: Director of Public Prosecutions - Respondent JUDGMENT 1 HIS HONOUR: Bryan Greenfield appeals against his conviction for an offence of common assault. The incident occurred some time ago, on 29 October 2005. I describe it as an incident because there is no doubt that something happened that night. The question is whether it amounted to a common assault. To be more precise, the question is whether the Crown has proved beyond reasonable doubt that that is what has occurred. 2 Let me begin by noting some significant features very much in the appellant's favour. He is a man of good character. He was thirty-five years of age at the time. The Crown says he assaulted his wife but there were no prior entries of violence or anything at all on his criminal history. That is a matter very much in his favour, both tending to suggest the unlikelihood that he committed the offence and his general credibility when he gave evidence denying it in court. 3 The next matter strongly in the appellant's favour is that there was a significant delay between when the complainant said she was assaulted and when she asked police to take action over the matter. Police did conduct some cursory investigations on 29 October 2005 but the evidence was that the complainant wished the matter to go no further because she was then pregnant and due to give birth shortly thereafter, and was returning to Perth from Sydney in any case. It was not until over a year later that the complainant, in effect, reactivated the matter. What happened in the meantime is the third matter pointing heavily in the appellant's favour. 4 There had been Family Court proceedings. As with almost all Family Court proceedings they appear to have been significantly contested, with a great deal of acrimony. It is notorious that those with any experience in the criminal law in this State often see allegations being made where those allegations are motivated by Family Court proceedings or issues that arise in those proceedings. 5 So we have in this case a man of prior good character who is alleged to have assaulted his wife, his wife clearly having a motive to make a false allegation and who has delayed taking steps which would have caused the prosecution to commence action against the appellant. These are significant matters, as I have said, weighing in the appellant's favour. But that is not the entirety of the evidence before me by any means. 6 What occurred on 29 October 2005 was witnessed, at least partially, by two independent witnesses, a Ms Tryst and a Ms De Francesco. They both gave evidence as to what they saw. Ms Tryst's evidence, whilst it assisted the prosecution, did not assist in resolving the central allegation, namely, did the appellant punch his wife with a closed fist? The reason Ms Tryst's evidence did not help is that, as she said to the magistrate, she turned around at one stage so that she was not able to see the appellant and the complainant and when she turned back she saw the complainant lying on the ground. What caused her to lie on the ground was not something she was able to see. 7 But that is not the case for Ms Tryst's friend, Ms De Francesco. Ms De Francesco's attention was drawn to the appellant and the complainant. She said that they were at least arguing. It was not a case therefore of Ms De Francesco observing something to which her attention had not been drawn and which came as a complete surprise to her. Her evidence was that the appellant punched his wife with a closed fist to her left cheek. The appellant denies that but I am satisfied that it occurred and I am satisfied of that beyond reasonable doubt, for reasons I will explain. 8 Even given the complainant's motivations to lie, which have caused me to examine her evidence carefully, it is significant that she too says that she was subject to a single punch to her left cheek. The concurrence of the evidence given by Ms De Francesco and the complainant on this issue tends very strongly to suggest its accuracy. Mr Maiden, who appeared for the appellant, suggested that the evidence of Ms De Francesco was confused. But having read Ms De Francesco's evidence carefully I cannot see any evidence of confusion, in particular as regards the central allegation. Mr Maiden says that there are some conflicts in the evidence between Ms De Francesco and Ms Tryst. I do not regard those conflicts as significant, especially where, as I indicated, Ms Tryst's back was turned when it is alleged by the prosecution that the punch was thrown by the appellant. 9 Mr Maiden says that it is common ground that after the appellant's wife fell to the ground he was concerned for her welfare, calling her "darling" and attempting to rouse her from unconsciousness. Mr Maiden suggests that that is inconsistent with the actions of a person who has just angrily punched his wife. I do not accept that submission. It is entirely consistent with the actions of a person who did not mean to cause his wife significant harm, that he would be most concerned about her welfare to see her lying on the ground apparently unconscious. The fact that the appellant felt immediate remorse and was prepared to assist his wife rather than simply walk off, or even worse inflict further violence, is not inconsistent with an angry punch thrown a moment before. 10 Another aspect of the evidence that Mr Maiden relied on, appropriately, was what was said to be tendency evidence establishing, so it was said, a tendency of the complainant to act violently towards the appellant. There seems to be no doubt that the relationship was not a happy one and I am prepared to proceed on the basis that on a number of occasions the complainant acted violently towards the appellant after 29 October 2005. That may, and I am prepared to accept that it does, say something about the complainant's attitude and the complainant's character and her willingness to be violent towards the appellant. But even if I accept the appellant's version as to the violence that his wife inflicted upon him that evening, four punches and a slap, that scarcely justifies him punching his wife in return. In terms of legal consequences, even if the appellant was punched and slapped by his wife, and even if he believed that it was necessary for him to punch his wife in self defence, that was not a reasonable response in the circumstances as the appellant perceived them. I take into account there that it was clearly obvious to the independent witnesses, and clearly known by the appellant, that his wife was heavily pregnant. It was not a reasonable response, even to being punched and slapped by his wife, for the appellant to have punched his wife in return with such force that it caused her to fall to the ground, striking her head as she did so. 11 There is one other matter of corroborative material to which I have not made mention yet and that is, that when a police officer saw the complainant in hospital she observed a swollen top lip. That circumstance is unexplained on the appellant's version of events. Gentle slapping, presumably to the side of the face, in order to rouse her from unconsciousness, would be most unlikely to have caused the complainant's lip to be swollen. Not only is that piece of evidence corroborative of what Ms De Francesco and the complainant say, namely, that there was a punch, but it also damages the appellant's credibility. As I said, his version of events provides no explanation for that circumstance. Mr Maiden did submit that the police officer's evidence of seeing a swollen top lip was not something that she apparently put in her statement. Despite that I am prepared to accept the accuracy of what the police officer observed. It is not a matter of looking at every piece of evidence individually but looking at the whole of the evidence to see whether there is support for individual pieces of evidence in the evidence of other people. 12 Whilst I am dealing with credibility of the complainant, the Crown also points out that the appellant's version of events is contradicted by the independent evidence of the other witnesses in other respects as well. I am not suggesting at all that the appellant has any onus of proof upon him. But in deciding whether the Crown has proved its case beyond reasonable doubt I am entitled, and indeed obliged, to look at the appellant's evidence and to see whether that causes me to have any doubt as to whether the Crown has proved its case. I do not want to be taken to have suggested that the evidence in the prosecution case is all one way. There are matters in the prosecution case too which Mr Maiden is entitled to point to, and has pointed to, as also raising doubts. But on the whole of the evidence, for the reasons that I have indicated, I am satisfied beyond reasonable doubt that the appellant punched his wife once to her left cheek causing her top lip to swell and that that was not a reasonable response to any violence to which the appellant had been subject. The appeal is dismissed and the conviction is confirmed. SUBMISSIONS WERE MADE ON SENTENCE 13 HIS HONOUR: The consequences of a single punch can indeed be tragic. I had occasion recently to sentence someone for manslaughter after he punched a fellow pub goer who fell back, hit his head and died. As part of that process I had occasion to look at other sentencing decisions and discovered that, unfortunately, single punch manslaughters are relatively common. To punch someone, as the appellant did to his wife on this occasion, is a serious criminal act. It is seriously criminal in itself but the consequences which may flow from it are potentially disastrous. 14 The appellant, as I mentioned in my judgment dismissing the conviction appeal, is a man of prior good character. He and his wife, the victim of the offence, have since separated but have been able to maintain what seems to be a civil relationship for the sake of their child. Both parties are to be congratulated for that attitude. If they are putting the welfare of their child above their own interests that is very much to their credit. That seems to be the case. I am told that the current issue in the Family Court relates to whether the appellant's ex-wife should be able to relocate to Perth with consequential issues regarding access to their young son. From the material before me the appellant is, apart from this one offence, a good person and a valuable member of the community. The evidence establishes that the relationship between he and his wife was a difficult one, characterised by high emotion and occasional, if not regular, violence. Despite that this is the only criminal offence conviction of the appellant. 15 Even in circumstances where his ex-wife might be motivated to make allegations against him, she has made but a single allegation and that is this one. I therefore accept without hesitation Mr Maiden's submission that what occurred on this night is a one off. It is also notable that the appellant was immediately remorseful for what he had done. As soon as he saw his wife lying apparently unconscious on the ground he addressed her in familiar terms and was concerned for her welfare. He did not inflict further violence upon her, he did not walk away but he remained there to assist his wife. I am satisfied that he was most likely quite disturbed by what he had done. Mr Maiden seeks his client be given the benefit of an order under s 10 of the Crime (Sentencing Procedure) Act. There are two significant impediments to that. The first is that this was a very serious matter. True it is that it was a common assault only but to punch a heavily pregnant woman with such force that she fell to the ground thereby losing consciousness is grave indeed. 16 The second difficulty concerns the appellant's failure to plead guilty to an offence which both the magistrate and I are satisfied that he committed. That tends to suggest a lack of remorse. Any concerns he had for his wife that evening did not appear to have followed through to a willingness to accept responsibility for what he did. Despite those impediments, as I have described them, I am prepared to give the appellant the benefit of an order under s 10, primarily because I am satisfied that this is truly a one off event. Mr Maiden relied on a circumstance that the appellant, who is a Qantas pilot flying internationally, needs visas to fly to various locations and submitted that he would find it harder to get a visa if the magistrate's order, a fine of $1,000, was maintained. Such submissions are often made in this court but rarely are they backed up by evidence. I am prepared to accept the possibility that the appellant might find it harder to get a visa to travel to various locations but I am not at all prepared to decide this case on the basis that there will be a significant impediment to the appellant carrying out his career were I to confirm the magistrate's order. 17 As I have said, the primary reason that the appellant will get the benefit of an order under s 10 is because I am satisfied this is a one off matter. So without proceeding to a conviction the appellant is released on a bond under s 10 of the Crime (Sentencing Procedure) Act to be of good behaviour for a period of two years from today. The conditions of the bond are that he is to be of good behaviour, he is to appear before this court if called upon to do so and he is to notify the registrar of this court of any change in his residential address. ********** 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.