New South Wales Court of Criminal Appeal CITATION : Regina v Najjarin [2001] NSWCCA 46 FILE NUMBER(S) : CCA 60433/00 HEARING DATE(S) : 01/03/01 JUDGMENT DATE : 1 March 2001 PARTIES : Regina v Domenique Najjarin JUDGMENT OF : Ipp AJA at 1; Simpson J at 38; Carruthers AJ at 39 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/3036 LOWER COURT JUDICIAL Ford DCJ OFFICER : COUNSEL : (Appellant): P M Naughtin (Crown): C K Maxwell QC SOLICITORS : (Crown): S E O'Connor CATCHWORDS : Criminal Law - assault occasioning actual bodly harm - appeal against conviction - verdict not supportable by evidence - sufficient evidence to support conviction. LEGISLATION CITED : Evidence Act 1995 CASES CITED: R v DJT [1999] NSWCCA 22 M v The Queen (1994) 181 CLR 487 DECISION : Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60433/00 IPP AJA SIMPSON J CARRUTHERS AJ Thursday, 1 March 2001 REGINA v Domenique NAJJARIN JUDGMENT 1 IPP AJA : The appellant was convicted by a jury in the District Court of three charges of assault occasioning actual bodily harm. In respect of the first count, the appellant was ordered to enter into a recognisance in the sum of $500 to be of good behaviour for a period of two years and to place himself under the supervision of the Probation and Parole Service during that period. 2 As regards each of the remaining two counts, a sentence of twelve months periodic detention was imposed, each such sentence to be concurrent upon the other. The appellant appeals against the three convictions. 3 The complainant in respect of all three offences was Viviana Hanes. The first offence was committed between 8 and 9 pm on 9 January 1999 at 48 Proctor Way, Claymore. The second and third offences were committed between midnight and 1 am on 14 March 1999 at 6 Melliodora Way, Macquarie Fields. 4 The complainant first met the appellant on 31 January 1998 when she was staying with her parents at 52 Proctor Way, Claymore. The relationship developed and in February 1998 the complainant began residing with the appellant in his house in Parliament Road, Macquarie Fields. 5 In April 1998 the complainant became pregnant with the appellant's child. At some stage, and it is not clear when, because the complainant gave conflicting evidence in this respect, she moved out of the house in Parliament Road and eventually commenced living in a two-storey town house at 48 Proctor Way, Claymore. The reason for her moving out was that the appellant told her that his cousin, Christine Arpadjian, was coming to live with him. 6 Later the complainant discovered that Ms Arpadjian was not the appellant's cousin, and was the mother of a child of the appellant known as Domenique Junior. 7 While the complainant was living at 48 Proctor Way, the appellant brought Domenique Junior to her house where she looked after him. This occurred, according to her, every day. Domenique Junior was then about 18 months old. In December 1998 the complainant gave birth to a boy who was named Claude. Thereafter, she continued to reside in 48 Proctor Way with Claude. According to her, at that stage she was very much in love with the appellant and would see him two or three times a week. The appellant visited her at 48 Proctor Way, and she would also go to the appellant's home in Parliament Road, where she looked after Domenique Junior, Ms Arpadjian not being present at those times. 8 On 9 January 1999 the appellant came to 48 Proctor Way with Domenique Junior. After about 15 minutes, while she was in the kitchen and the appellant and Domenique Junior were upstairs, she heard Domenique Junior crying. The appellant and Domenique Junior thereupon came downstairs to the kitchen, and the appellant started to punch her in the face, saying that it was her fault that Domenique was crying. 9 The complainant said that the appellant punched her about three times in the face and in the stomach. She then fell down and he kicked her two or three times. She was severely bruised. The appellant then left taking Domenique Junior with him. These events constituted the prosecution case in regard to the first count. 10 The appellant denied the complainant's version of what had occurred on the evening of 9 January 1999. He testified that on 9 January 1999, for the entire day, he was at home with Ms Arpadjian and Domenique Junior. Ms Arpadjian at the time was pregnant with another child fathered by him and, indeed, she gave birth to that child at Liverpool Hospital at about 2 am on 10 January 1999. The appellant said that after being with Ms Arpadjian throughout the day of 9 January 1999, he drove to Liverpool Hospital in the evening and waited at the hospital until Ms Arpadjian gave birth. His evidence, in effect, was that the complainant's version was an entire fabrication. 11 At some stage, which is not entirely clear, the appellant moved his place of residence from Parliament Road to 6 Melliodora Way, Macquarie Fields. According to the complainant, on 28 January 1999 she moved in with the appellant at that address. Ms Arpadjian was also residing there and she and Ms Arpadjian each had a single bedroom. According to the complainant, she believed that Ms Arpadjian's relationship with the appellant was over. 12 Around midnight on 13 March 1999, the complainant walked into Ms Arpadjian's bedroom and found Ms Arpadjian having sexual intercourse with the appellant. She immediately returned to her own room. Shortly thereafter the appellant came into her room and hit her more than three times with his closed fist. He told her that it was her fault that she saw what was going on in Ms Arpadjian's room. He was very angry with her. The complainant apologised. The appellant told her to pack her bags and leave the house, but she was to leave her child Claude with him. 13 The complainant asked the appellant to give her another chance. He then left the room. The punches to which I have referred constitute the assault which is the subject of the second charge. 14 Ms Arpadjian came into the complainant's room and they had a discussion. After Ms Arpadjian left, the appellant entered the room with a baseball bat. He struck the complainant twice on the right side of her ribs with the baseball bat. The appellant then left the room. The blows with the baseball bat constitute the assault which is the subject of the third charge. 15 According to the complainant, she sustained serious bruising in consequence of the two assaults. Again, the appellant denied the complainant's version entirely. He asserted that the complainant was not living at Melliodora Way on the evening of 13 March. He denied that he owned or possessed a baseball bat. He denied striking the complainant at all. Essentially, he contended that the complainant's allegations were all lies and she was motivated by a resentment caused by the fact that he had rejected her and terminated their relationship. 16 The complainant was cross-examined extensively and she was in the witness box for some two days. The cross-examination was wide ranging. I shall mention some aspects of it. There were inconsistencies in regard to matters of detail in her testimony, and inconsistencies in her evidence when compared to that of others, and these were all taken up by cross-examining counsel. As mentioned, the complainant testified that she received several bruises as a result of the blows inflicted on her by the appellant. Nevertheless, she had not immediately complained to any person, and had not sought medical attention for her bruises. 17 Counsel for the appellant questioned her thoroughly about these matters. The appellant's version of their relationship was put to her in detail. Generally she was questioned on every aspect of her testimony, which could be said, in any respect, to be improbable. 18 The prosecution called Dr Lau, a general practitioner, who testified that he saw the complainant on 16 April 1999 and she complained to him that she was living in a violent relationship. This evidence was admitted on the authority of Regina v DJT [1999] NSWCCA 22, on the basis that the evidence concerned a prior consistent statement that rebutted the suggestion that was to be made in the trial that the complainant had fabricated the charges against the appellant. (See s 108(3) of the Evidence Act 1995). No complaint is made in respect of this ruling. 19 The complainant's mother gave evidence that tended to support the complainant's testimony that she was living at Melliodora Way at the relevant time. She also stated that she had told the complainant to go to the police. The latter piece of evidence was also admitted on the same basis as that of the general practitioner, and similarly no complaint is now made in respect of that ruling. 20 A further witness, Mrs Carr, also gave evidence that tended to support the complainant's testimony as to her residence in Melliodora Way. It was put to Mrs Carr in cross-examination that she did not like the appellant, and she frankly admitted this. It was plain from her testimony that she was generally inimical to the appellant. 21 The appellant testified and was cross-examined. Ms Arpadjian also testified and she was cross-examined in particular about a statement she had made which was consistent with the version given by the complainant, as to the incidents that occurred on the night of 13 March 1999. She retracted what she had said in the statement and said that she had made the statement out of anger and jealousy. Mr Dib, a neighbour and friend of the appellant, gave evidence that tended to support the appellant's testimony that at the relevant time the complainant was not living in Melliodora Way. 22 It can be seen from this brief summary of the testimony given by the various witnesses that the trial was, in essence, a credibility contest between the witnesses who testified on behalf of the Crown and the appellant and his witnesses. In other words, the guilt of the appellant depended upon the jury's view of the credibility of the respective witnesses. 23 The nature of the dispute was made patently clear by the directions of the learned trial judge. His Honour pointed out that the accounts given by the complainant, her mother and Mrs Carr were irreconcilable with the accounts given by the appellant, Ms Arpadjian and Mr Dib. His Honour pointed out the more important inconsistencies in the testimony of the complainant. He noted that there was no evidence of witnesses who saw any bruises or marks on the complainant. He drew the jury's attention to the fact that the complainant did not speak to her mother, the neighbours, or go to a doctor about what had occurred. 24 There was a complete absence of corroborative evidence in regard to the bruises that she said she sustained. His Honour told the jury that they should consider whether this was a very serious omission from the case for the prosecution. He pointed out to the jury that according to the hospital records, the appellant was at the Liverpool Hospital birthing unit at about 10 pm on 9 January 1999, and said that this meant that it would have been possible for the appellant to have been at Proctor Way, as alleged by the complainant, but noted that if that were so, "then his timing must have been extraordinarily good to ensure that Christine, that is, Ms Arpadjian, arrived at the hospital at ten o'clock". 25 The learned trial judge pointed out to the jury that there was a crucial question as to whether the complainant was in fact living at Melliodora Way on the evening of 13 March 1999. He pointed out that both the appellant and Ms Arpadjian testified that she was not living there. He said that if it was not proved beyond reasonable doubt that the complainant was living at Melliodora Way on the evening in question, then the jury might think that the evidence fell short of establishing the Crown case. 26 His Honour carefully told the jury what use they could make of the evidence of Dr Lau, the general practitioner. He dealt fully with the conflicting evidence concerning the baseball bat. He detailed inconsistencies in the evidence of the complainant as to where she was living at particular times, the periods at which she was living at particular addresses, the length of the relationship with the appellant and other matters. He pointed out the possible bias on the part of Mrs Carr. His Honour dealt fully with the version given by the appellant. He concluded by saying: "You may, of course, rely entirely upon the evidence of Viviana Hanes. She gave sworn evidence as to what she said happened and you may accept what she said, but needless to say, you would do so only after the most careful consideration of what she had to say on the subject." 27 In the end, the verdict of the jury demonstrates that they rejected the evidence of the appellant and his witnesses and believed the complainant beyond reasonable doubt. 28 There are fifteen grounds of appeal. These grounds are, however, in effect only particulars of one ground, namely, that the verdicts of the jury are unreasonable and cannot be supported by the evidence. It follows that the principles laid down in cases such as M v The Queen (1994) 181 CLR 487 are applicable. That is to say, notwithstanding that there may be evidence to sustain a verdict of guilty, when a Court of Criminal Appeal is asked to conclude that a verdict is unsafe and unsatisfactory, it must ask whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. 29 In answering this question, the Court must pay full regard to the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the fact that the jury has had the benefit of seeing and hearing the witnesses. The Court must decide the question by making its own independent assessment of the evidence. As the majority in M v The Queen said at 494: "It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred." 30 Most of the fifteen grounds of appeal are repetitive and argumentative. They say little more than that there was insufficient evidence to sustain the verdict, that there was a miscarriage of justice, that the only direct evidence incriminating the appellant was that of the complainant, and that by reason of inconsistencies, inherent improbabilities and other matters, the prosecution witnesses should have been disbelieved and the appellant and his witnesses should have been believed. The appellant also relies on the delay on the part of the complainant in bringing the matter to the attention of the police. 31 As regards the argument that there was insufficient evidence to sustain a verdict, there was in fact ample evidence to support a conviction. The complainant gave graphic testimony in considerable detail as to the assaults committed upon her. It is the case that the only direct evidence incriminating the appellant was that of the complainant, but the jury were properly instructed in this respect, and they were entitled to rely on that evidence to find that the prosecution case had been proved beyond reasonable doubt. 32 The allegation that the complainant "was on a vendetta and course of revenge in making her allegations against the appellant" was put to the complainant in cross-examination, and she denied it. A submission to the same effect was put to the jury and was rejected. That is the end of the issue. 33 The complainant was cross-examined as to the delay in complaining to the police. Essentially she said she was scared of the appellant and was reluctant to proceed. There is nothing improbable in this explanation, and this was accepted by the jury. 34 There were internal inconsistencies in the appellant's testimony, but these were matters for the jury. They were not of great moment. It was for the jury to decide whether those inconsistencies detracted from her evidence to the extent that she was not to be believed beyond reasonable doubt. The jury did believe the complainant beyond reasonable doubt and it was open for them to do so. 35 There was nothing inherently improbable in the complainant's version. As regards the differences between her version and between that of the defence witnesses, these were drawn to the attention of the jury. Examples of matters that fell into this category were the assertion that the appellant was with Ms Arpadjian for the whole of 9 January 1999, and could not have committed the assaults alleged; that the complainant never resided at Melliodora Way; the absence of medical evidence to support the testimony of the complainant, and, of course, the fundamental denial of the complainant's version by the appellant. 36 These matters were all questions for the jury. They were raised properly with the jury and were decided adversely to the appellant. They were essentially matters to be resolved by the jury, who had the advantage of hearing and seeing the witnesses concerned. They do not give rise to any reasonable doubt in the sense described in M v The Queen . 37 In all the circumstances I would dismiss the appeal. 38 SIMPSON J : I agree. 39 CARRUTHERS AJ : I also agree. 40 IPP AJA : The order of the Court will therefore be as I propose. ********** 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.