District Court New South Wales Medium Neutral Citation: Crotty v R [2015] NSWDC 301 Hearing dates: 21-22 September 2015 Date of orders: 24 September 2015 Decision date: 24 September 2015 Jurisdiction: Criminal Before: Neilson DCJ Decision: Appeal allowed. Set aside conviction recorded and sentence passed by Downing Centre Local Court on 29 May 2015 Catchwords: CRIMINAL LAW – Assault occasioning actual bodily harm – Alleged domestic violence – Onus and burden of proof – Complainant essential Crown witness – Court required to direct itself in accordance with R v Murray – Accused gave and called evidence – Significance of that evidence in determination of whether Crown has discharged its onus of proof – Medical evidence adduced was not determinative but neutral Cases Cited: Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086 Regina v Murray (1987) 11 NSWLR 12 Robinson v The Queen (1999) 197 CLR 162 Tully v The Queen (2006) 230 CLR 234 Category: Principal judgment Parties: Justin Patrick Crotty (Appellant) Crown (Respondent) Representation: Counsel: Mr H Dhanji SC (Appellant) Solicitors: North Shore Criminal Law (Appellant) Office of Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2014/252579 Publication restriction: No Decision under appeal Court or tribunal: Downing Centre Local Court Jurisdiction: Criminal Date of Decision: 29 May 2015 Before: Keogh LCM File Number(s): 2014/252579 Judgment 1. HIS HONOUR: This is an appeal against a conviction recorded and a sentence passed in the Downing Centre Local Court by Magistrate Keogh. Unfortunately, her Honour never formally convicted the appellant but on 5 May 2015, found the offence with which the appellant was charged, to have been proved beyond reasonable doubt. On 29 May 2015, her Honour imposed a sentence on the appellant in respect of the charge which she found proved on 15 May 2015. 2. The appellant was charged that between 6.30pm and 7.30pm on 9 August 2014, at Bellevue Hill he did assault Camilla Elisabeth Crotty, thereby occasioning actual bodily harm to her. The middle name of the alleged victim of the assault is a matter of conjecture. Despite the spelling of the alleged victim's middle name in the court attendance notice, police documents refer to her middle name as Elisabet. When she gave evidence before the Local Court, her middle name was recorded as Elyse at the top of page 53 of the transcript of 3 May 2015 but then is recorded as being Alyse on line 7 of the same page of the transcript. Nothing turns on that. The appellant pleaded not guilty. The matter was heard by Magistrate Keogh on 3 February 2015 and 27 February 2015. Her Honour heard addresses on 13 May 2015, and as earlier stated, gave reasons for finding the offence proved on 15 May 2015, before proceeding to pronounce a sentence on 29 May 2015. 3. The appellant and the alleged victim, to whom I shall refer hereafter as "the complainant", were at all material times, husband and wife. The appellant was born in 1971 and at the time of the offence alleged, was 43 years old. The complainant was born in 1972 and at the time of the allege offence, was 41 years old. The evidence suggests that at the time of the alleged offence, the couple had known each other for seven years, from which I infer that they met in approximately 2007. The evidence also suggests that they had been married for five and a half years at the time, indicating that they must have married in early 2009. The couple have two sons. Kai was born in 2010 and was four years and six months old at the time of the alleged offence and Kallen, was born in 2013 and was nine months old at the relevant date. The evidence discloses that the full dates at birth of each of those four persons but for security reasons, I do not recite them in these reasons for judgment. 4. The couple and their children were living in rented accommodation in Apartment 4, 16 Birriga Road, Bellevue Hill. They had earlier sold a house that belonged to the appellant and were accumulating further money in order to purchase a matrimonial home. The couple could be described as, "high flyers", in our community. The appellant was and is, a corporate adviser and is required to travel quite frequently in the course of his business. The complainant has university qualifications and is essentially a funds manager. She initially worked in the early part of her career with Bankers Trust. However, five years before the relevant event, that of 9 August 2014, she had left the workforce in order to become a fulltime mother. The evidence suggests that prior to 9 August 2014 the couple had had some matrimonial difficulties, but that is not at all uncommon. The appellant was a man of prior good character. The evidence to support that can be found in the transcript of the first day of proceedings at page 16, line 19. 9 August 2014 was a Saturday. The evidence suggests that on that day the appellant had stayed at home to look after his two young sons. 5. The complainant went out shortly before 2pm to attend a luncheon at Catalina's Restaurant at Rose Bay with a group of her friends. There were ten ladies all told who attended the luncheon, which was due to commence at 2pm. The complainant was taking this opportunity to introduce to other of her friends Ms Kylie Toomey, whom the complainant had known for around ten years. They were close friends. Ms Toomey had only recently moved to Sydney from Melbourne. She was living at Bronte. She engaged an Uber vehicle to transport her from Bronte to Catalina's Restaurant. In order to do so she had to pass by the complainant's residence. She picked the complainant up on her way to the restaurant. She estimated that they arrived at the restaurant at 2pm. 6. It appears that those two ladies were the first to arrive. The evidence discloses the identity of seven of the ladies who attended this lunch. The identity of the other three ladies has not been given. Those identified besides the complainant and Ms Toomey are Ms Katie Lloyd Jones, Ms Elizabeth Chisholm, Ms Sarah McGee, Ms Sarah Weisner and Jacinta (surname not given). Police obtained statements from not only the complainant but Ms Toomey, Ms Lloyd Jones and Ms McGee. No attempt was made, on the evidence before me, to obtain a statement from Ms Weisner or from the lady Identified as Jacinta, nor was any attempt made to identify the other three ladies who attended the lunch. 7. At the hearing Ms Toomey and Ms Lloyd Jones gave evidence. There was clearly an intention to call Ms McGee but the transcript records at line 42 that the Prosecutor, Sergeant Smith, had obtained a message from Ms McGee that she was not able to attend court, despite the fact that she had been served with a subpoena, because she was attending a family wedding. In those circumstances the Prosecutor elected not to call Ms McGee. 8. Whilst the complainant was at this luncheon the appellant was caring for their two sons. The evidence discloses that he anticipated that his wife would return home at around 6pm, plus or minus an hour, that is, somewhere in a window between 5pm and 7pm. 9. The lunch did not commence at the scheduled time of 2pm. Ms Lloyd Jones arrived at about 2.20pm. Ms Chisholm arrived about 2.15pm. The evidence discloses that a number of other participants at the lunch were attending from Double Bay and had ordered a taxi which failed to arrive leading to their arriving late. By the time six or seven of the ladies had arrived, champagne was ordered and was consumed. The champagne ordered was Veuve Cliquot. An issue arises in the current proceedings as to the amount of alcohol that the complainant consumed in the hours preceding the assault alleged. The complainant's evidence is that she consumed six glasses of champagne in a six hour period between 2pm and 8pm. Of the other diners who gave evidence, Ms Toomey said that she left the luncheon around 7pm but did so in company with Ms Lloyd Jones. Ms Lloyd Jones said that she left around 6.45pm. Ms Chisholm left about 7pm. No one was called who may have been with the complainant between 6.45/7pm and 8pm or later. 10. The evidence strongly suggests that the complainant left the restaurant after 8pm. In an email sent by the complainant to police on Monday 11 August 2014 at 4.45pm, the complainant said that she arrived home at 8.30pm. The distance between Catalina's Restaurant and the complainant's residence was 2.3 kilometres and that could be travelled by motor car in six minutes. That intelligence is established by exhibit 4. The complainant's evidence is that she obtained the assistance of the staff of the restaurant in obtaining a cab which took her from the restaurant to her home. The complainant may have had to wait some time for the arrival of the taxi which had been ordered for her. However, bearing in mind that the trip itself would only take six minutes, one can postulate that she intended to leave the restaurant about 8.10 or 8.15pm but probably did not actually leave the restaurant till very shortly after 8.20pm. 11. When the complainant arrived home she had an oral argument with the appellant. Equally one could say the appellant had an oral argument with the complainant. At this stage I shall not recite what the contentions were but the countervailing allegations need to be considered in a chronological context. Shortly after the oral argument, and the physical events which are said to establish the alleged assault, the appellant telephoned his father, pointed out that things were not going well at the appellant's home and asking his father to come to the appellant's residence. Mr Brendan Crotty, the appellant's father, did so. In oral evidence, which was not the subject of any dispute, Mr Brendan Crotty said that he checked his mobile telephone and also toll records and he believed that he arrived outside the residence of the couple sometime between 8.54 and 8.57pm. His reference to checking his mobile telephone would clearly be to ascertain the time of the appellant's call to him. Mr Brendan Crotty lived at Cammeray and needed to cross the harbour either by way of the Sydney Harbour Tunnel or the Sydney Harbour Bridge and would therefore incur some form of toll. There was no real dispute that Mr Brendan Crotty arrived at the couple's residence sometime between 8.54 and 8.57pm. By that stage about 20 minutes had elapsed from the time of the appellant's call to his father. That suggests that the relevant event happened sometime between 8.34 and 8.37pm which is consistent with the complainant's arriving home at 8.30pm and the immediate interaction between the complainant and the appellant. Mr Brendan Crotty was at the couple's residence for only a relatively brief period. The evidence suggests that he may have left at 9pm or shortly thereafter. 12. At about 9.50pm the complainant made a telephone call to a close personal friend, Mrs Sally Obermeder, who gave oral evidence in the Local Court. Ms Obermeder suggested to the complainant that she telephone the police. The complainant did so. I do not know whether she phoned the local police station, which would have been Rosebay Police Station, or whether she phoned 000, but as there was a VKG radio broadcast the inference to be drawn is that it is likely that she phoned 000. The VKG broadcast was made at 10.08pm. According to [5] of exhibit 5 the VKG message was this: "Informant states that her husband has assaulted her. Husband has now left the location. Two children at the location. Nil AVOs. Husband is Justin Crotty." Exhibit 5 is a statement of Constable Charles Prow of the Rosebay Police. That evidence is confirmed by oral evidence given by Constable John Spicer at p 17, line 27 of the transcript of evidence of 3 February 2015. 1. Police attended at the couple's residence at 10.30pm. That is established by [6] of exhibit 5 and by the oral evidence of Constable Spicer at p 17, line 28 of the transcript of 3 February 2015 as well as by a contemporaneous note at the top of p 73 of the police notebook of Constable Prow which is part of exhibit 5. The magistrate below erroneously referred in her reasons on p 2 to the police arriving at the residence "at about 10.10pm". The evidence is all one way, that it was 10.30. At 10.46pm the complainant signed an entry in Constable Spicer's notebook. The relevant part of his notebook is exhibit 12. That suggests that the interaction between Constable Prow and Constable Spicer ended at about 10.46pm. It must also be noted that in addition to Constable Prow and Constable Spicer attending the couple's residence on the evening of 9 August 2014, Sergeant Adams also attended but left before the two constables did. No evidence was adduced at all from Sergeant Adams. 2. At about 11pm the complainant made a further telephone call to Mrs Sally Obermeder. 3. On Sunday, 10 August 2014 the complainant had made arrangements to participate in the City to Surf Race. When answering questions in chief about her consumption of alcohol at the luncheon on 9 August the complainant said this: "Well over the six hours I had about six glasses of champagne, I was conscious of the fact that I was doing the 14 k City to Surf the next day so, you know, I knew, I knew what my limits were. I mean at the end of the day I was socialising with friends, I was not intoxicated." In cross‑examination on 27 February 2015 the complainant gave this evidence, again in questioning concerning her alcohol intake: "I was doing the City to Surf the next day. I had to be at Hyde Park at 8.30am. My girlfriend had raised over $10,000 for charity for the City to Surf. There was absolutely no way I would let her down. I was totally conscious of what I was drinking. It's a 14 kilometre run." There is no evidence as to whether the complainant participated in the City to Surf run on Sunday 10 August 2014 but one could easily infer from the last piece of evidence that I have quoted that she did so. She clearly intended to do so. 1. On the morning of Sunday 10 August 2014 the complainant sent an email to Constable Spicer. That email is contained in exhibit 13. The email enclosed photographs which found their way into evidence as exhibit 3. They are photographs of the complainant's forearm and face and are four in number. They might be described as "selfies", that is, they appear to have been taken by the complainant herself. After enclosing those photographs the email says this: "The incident probably took place more like 9ish." Clearly that is referring to the event which is the subject of this appeal and indicates that the appellant had previously given to Constable Spicer a different time as to when the event occurred. The email then said, "If you need anything else from me my mobile phone number is…" The final sentence of the email thanked Constable Spicer for his help the preceding evening. 1. On Monday 11 August the complainant attended the surgery of Dr Linda Lombard, a general practitioner at the Bondi Health Care Centre in Bondi Road, Bondi. Dr Lombard prepared an expert certificate which became exhibit 7 and the exhibit includes the practice's computerised consultation notes made on 11 August 2014 commencing at 12.16pm. Later that day at 4.45pm the complainant sent a further email to Constable Spicer to which I shall again turn. 2. The evidence discloses that on Tuesday 12 August 2014 the complainant had an appointment to see her solicitor at 11.30pm. That is established by the email of 11 August 2014, part of exhibit 13. 3. On Wednesday 13 August the appellant was arrested by the police at his father's home at Cammeray and taken to the North Sydney Police Station. He agreed to be interviewed by police. His solicitor, Mr William Vahl, participated in the interview but merely as an observer. The interview was conducted primarily by Constable Courtney Farthing and Constable Jon Wilson was in attendance. The interview, leaving out the concluding formalities, involved 238 questions and commenced at 12.37pm and concluded at 1.20pm. The intelligence communicated by the appellant in that electronically recorded interview is quite consistent with the oral evidence which the appellant eventually gave to the Local Court on 27 February 2015. 4. The only remaining dating matter to note is that on Thursday 14 August 2014 the complainant commenced proceedings against the appellant in the Family Court. That evidence is contained at the transcript of 27 February 2015 at p 49 line 19. A further thing to bear in mind before going into greater detail is that the appellant was due to leave the residence he shared with the complainant and their children at 6am the next morning to undertake a business trip to Korea. The evidence also specifically mentions Seoul. The appellant was not due to return from Seoul until Wednesday 13 August 2014. He appears to have arrived in Sydney that morning, attended at his father's residence and there was arrested by police from North Sydney, acting on behalf of the Rose Bay Police. That is despite the fact that earlier he had made oral arrangements to attend voluntarily at the Rose Bay Police Station in order to assist the police with their enquiries. [ADJOURNED PART HEARD TO WEDNESDAY 23 SEPTEMBER 2015] 1. HIS HONOUR: At the commencement of my reasons yesterday I outlined the background of both the appellant and the complainant. There was a definite purpose for doing that. It is abundantly clear that both the appellant and the complainant are well‑educated and articulate. One would not need to give to them the allowance one sometimes must, of having a poor memory or being unable to describe what was occurring adequately. In particular, I must stress that a poor memory is not to be readily attributed to the well‑educated and the intelligent. 2. It is perhaps instructive to consider the various complaints that the complainant made from time to time. Of course the first person to whom she could have complained is the appellant but one must leave their interaction aside. The next person to have any contact with the complainant was the appellant's father, a Mr Brendan Crotty. According to his evidence‑in‑chief, as he was about to leave the couple's home unit the complainant said to him, "Do you realise that Justin physically and verbally abuses his children?" To that he replied that he did not believe what the complainant had told him. He did not give any evidence that the complainant said to him words to the effect that she had been physically assaulted by his son. In cross‑examination this question and answer were recorded: "Q. She hasn't said anything to you because you've walked in with Justin and she's standing in the kitchen? A. She hasn't said anything to me at that point. It was only when she said to me that Justin had been physically and verbally abusive to the children, that, that her voice was slurred, because she didn't speak to me when I walked in." There was no suggestion put to Mr Brendan Crotty that any complaint was made to him by the complainant that she had been assaulted by the appellant. 1. The next person to whom a complaint was made by the appellant was to her friend, Mrs Sally Obermeder. As I recounted yesterday the complainant telephoned her about 9.50pm. She gave evidence that the complainant was "quite distressed". This evidence was then given. "Q. Would you be able to use the first person, so I said, she said, for that phone conversation that you had? A. Yeah. So I picked up the phone because it was unusual, 10 to 10, for her to call me, to me means something wrong, so I picked up. She was crying. She was crying so much I couldn't actually hear anything other than tears, and I said to her, you know: 'I can't understand what you are saying. I can't hear anything. I can't hear you saying anything other than crying. Stop crying, tell me what's going on, what has happened, what's wrong.' I wasn't sure if something had happened to the kids. She, she kept crying. I said, 'tell me what's happening'. She sought of stopped long enough to say to me, 'Justin has hit me. Kai was here. He saw. He was so scared. I'm scared', and I said, 'where are the kids now?' and then she said, 'they're in bed'. Q. I know this must seem very strange to you, but once she said to you, 'the kids are in bed', what happened then? What's the next thing? A. I think I asked where Justin was and she said he had gone, his dad came to pick him up. And she said she was still scared. She was very worried because Kai was scared, that he had witnessed it, that he had seen firsthand what had been going on." The Magistrate then asked the complainant to repeat what she had said and then after a few more questions this evidence was given in answer to a question by the Prosecutor: "When she said she was still scared and, and she was, she was worried, she was worried about what would happen again and I said, 'well I think maybe you should call the police', and then she said, 'yes, I think I will'. I also spoke about a locksmith but that was kind of a bit secondary. She said, 'yes, I think I will'. We hung up." The only actual allegation made by the complainant against the appellant to Mrs Obermeder was that "Justin has hit me". No detail appears to have been given. 1. As I recounted yesterday the complainant then made a telephone call, probably via 000, and the police eventually attended her residence at 10.30pm. Constable Prow did not give oral evidence but his statement made on 26 November 2014 was tendered together with a copy of his notebook entry which was contemporaneous. At [6] of his statement Constable Prow said this: "At 10.30pm myself, Constable Spicer and Sergeant Adams met Camilla Crotty at the address and she led us inside before having a conversation with Constable Spicer: Constable Spicer said: 'What's happened tonight? Camilla said: 'I've had an argument with my husband, he hit me'. I said: 'Are you okay, do you need an ambulance?' Camilla said: 'No I'm okay'. While we were speaking with Camilla I observed her to be shaking and that she had tears in her eyes. She stated, 'Justin constantly abuses her and calls her a fucking whore'. She also stated her four year old son witnessed the assault and was crying. During the conversation Camilla also said words to the effect of: Camilla said: 'He's only here three days of the week so I just put up with it when he's here, then he's away for the other four days and it's just me and the kids, it's okay, I can handle it.'" The constable's statement then records observations he made about injuries which it is not necessary for me to recite at this time. 1. Constable Spicer gave oral evidence on 3 February 2015. In chief the constable said that the complainant told him that her husband had hit her. In his evidence he then stated that he observed that she had bruising to her left eye and bruising to her right forearm, which she showed to him whilst they were talking. He also said that she pointed to her left eye saying, "this is where he's hit me". He then deposed in chief to having a further conversation with the complainant and he then said this: "She was pretty hysterical, she was crying and obviously still shaking while she was speaking with us." In cross‑examination Constable Spicer admitted that he had prepared a provisional apprehended violence order. His attention was taken to p 4 of the document. The document was marked MFI A but was never put into evidence. At p 26 line 12 of the transcript of 3 February 2015 the following evidence is recorded: "Q. Just looking at first of all the second paragraph you've written there. 'There has been [no] record of domestic violence in the past.'? A. Yes." In making that quotation I have made a correction to the transcript. The word I have stated to be "no" has been typed as "on" but it is clear from other questioning and from common‑sense that there was a typographical error. 1. Putting together what was recorded on p 4 of the AVO document from the questions, the following can be ascertained to have been stated: "About 6.30 on 9 August 2014 the PINOP has returned home from being out at lunch with friends [.] The accused was not happy that she had been out and started yelling and swearing at the PINOP [.] They had moved the argument to the main bedroom as the kids were home and the yelling continued [.] The door to the main bedroom was left open whilst this was occurring [.]" The questioning of Constable Spicer continued thus: "Q. And then you immediately after that describe the allegation of a punch to the PINOP? A. Yes. Q. So you agree there that in that version that you have provided with and that you dutifully relayed it to the Court.. A. Mm-hmm. Q. ..there's no mention of an incident in the bathroom? A. Yes. Q. And there is no mention of any grabbing or twisting of the complainant's wrist? A. No, that's as much information I could get from her on the night and she didn't want to supply me with a statement." The first part of what is contained on p 4 of the provisional AVO document that I reconstructed was confirmed by Constable Spicer to have been what he was told by the complainant. In other words, the gist of what was stated was that at about 6.30pm on the evening in question there was one interaction between the complainant and the accused, that that one interaction of violence was in the bedroom and that involved a punch by the appellant to the complainant's face. However, it ought to have been clear to Constable Spicer that more must have been involved because he had already observed bruising to the complainant's right forearm. However, clearly the intelligence which was communicated by the complainant to Constable Spicer was limited. The complainant signed a short statement in Constable Spicer's notebook. 1. Immediately before the recording of that statement in Constable Spicer's notebook is the residential address of the appellant's father and immediately prior to that piece of information is a record that the relationship between the complainant and the appellant was of seven years' duration, consistent with what I stated yesterday, and then there is a note that there had been "two years' verbal abuse'", presumably a statement by the complainant that the appellant had been verbally abusing her over a period of approximately two years. 2. The statement of the complainant recorded in the notebook of Constable Spicer is extremely brief. It contains the statutory acknowledgement of the accuracy of the statement and of the consequences of making a false statement. The statement then continues thus: "My husband will be staying at his dad's place tonight and won't be home. I have no fear for my safety tonight. I am not willing to provide a statement for the assault and go through the court process." There is then the dating, and the time of the complainant's signature at 10.46pm. The timing of the assault at about 6.30pm is an inconsistency because it has become abundantly clear that the assault occurred at 8.30pm or very shortly thereafter, as I sought to establish yesterday from what might be thought to be fairly objective evidence. 1. After the police left, and I infer that that was shortly after 10.46pm, the complainant made a further telephone call to Mrs Obermeder. Ms Obemeder's evidence-in-chief continued thus: "Then after that we spoke again later that night and she said the police had been, and then I said, you know, "How do you feel now?" and she said, "I feel, I feel calmer now, I feel safer now that the police had been," and she sounded substantially better than she did in the first conversation, because in the first conversation she was suitably and appropriately distressed and hysterical." Of course, the averment by Ms Obermeder that during her first conversation with the complainant, the complainant was "suitably and appropriately distressed and hysterical" is an opinion which clearly points in the direction of partiality of the witness towards the complainant. Ms Obermeder went on to say that she asked the complainant what had happened and that the complainant said words to the effect, "I was at lunch, got home and Justin just lost it." The only thing to note about the cross-examination of Mrs Obermeder is that she confirmed that in the statement the complainant also said to her, "He also sent me an abusive message while I was at lunch." 1. The next communication that I know the complainant had with anybody was her email communication with Constable Spicer at 7.30am on the morning of Sunday 10 August. In that communication the complainant relevantly said that the incident probably took place "more like nine-ish" which indicated to me either that the complainant remembered that she had told the constable that the event occurred at about 6.30pm and now wanted it to be known that it occurred about 9pm, or that, by that time, Constable Spicer had forwarded to the complainant a copy of the provisional AVO. The evidence does not allow one to ascertain which of the two conclusions be the correct one. 2. The next record of the event made by the complainant of which the Court was aware was the record made by Dr Lombard commencing at 12.16pm on Monday 11 August 2014. The contemporaneous consultation notes of the practice which are exhibit 8 are these: "Saturday went for lunch with friends. Got home at 8.30pm. Husband became very angry that had stayed out late and had has[sic] something to drink and as Camilla was trying to get into the bathroom and husband tried to prevent [her] entering bathroom - grabbed her right forearm and then pushed her in [to] bedroom and hit her with fist on her left hand side of face. No loss of consciousness." The same history is recorded in paras [6] to [8] of Dr Lombard's expert certificate which is exhibit 7. The appellant by his counsel has submitted that it is significant that the complainant gave the doctor a history of her having consumed alcohol at the luncheon because that indicates that her consumption of alcohol was a relevant consideration. There is force in that submission. Whilst the contemporaneous notes merely refer to "something to drink" the expert certificate glosses those words with the word "alcohol" and that in my view is clearly the understanding by Dr Lombard what she was told by the complainant and it is clearly a rational inference because, if the complainant had only been drinking water, it would have been an irrelevant consideration to bring up when the complainant saw the doctor and explained to her the nature of what had made the appellant angry. 1. The next communication that is in evidence is the email sent by the complainant to Constable Spicer at 4.45pm on Monday 11 August. It is clear that that document stems from the appellant's having read the provisional AVO. The initial purpose of sending the email was to transmit to Constable Spicer photographs taken of the inside of the complainant's mouth and of her lip taken at Dr Lombard's surgery. The email is this: "I didn't send photos of inside my mouth and lip. They are attached. I noticed in the AVO and there was no reference to the hand grip he put around my wrist (I included a photo in my first email). Just wanted to make sure you knew that. Not really sure if it was his right or his left hand that hit me it all took me by surprise and I was in shock. I went to the doctor today so she could document that the cuts inside my mouth and marks on arm (you can see two finger marks) from physical contact. As I previously mentioned, Justin on the phone on Sunday night denies hitting me and says I pushed him (he also said I always push and hit him) and then I fell over (then later he admitted to pushing me). He said I came home abusing him. One of the reasons the argument started was because he was verbally abusing me and I said "Keep going I will record you on the phone." If I was abusing him why would I want to record myself? He says in his email "Thankfully dad witnessed how drunk you were" but Justin was still happy to leave me with the kids and go to his dads. Kai's bedtime is 7pm so he should have been asleep and he was still in the bath at 8.30pm when I came home. Justin has documented the incident in an email and "next steps" for separation clearly trying to protect himself and putting blame on me for being at a girlfriend's bday at Catalina's for 10 people between 2-8pm and having a few drinks. I have been in contact with a solicitor and they have advised me not to respond until I meet with them tomorrow at 11.30am. A question regarding the AVO that the solicitor asked was whether he was allowed to come back into the house? Thanks again for all your help." 1. As I mentioned yesterday the appellant gave an interview to the police on Wednesday 13 August 2014 commencing at 12.37pm. However, the complainant did not make any statement to the police until Tuesday 19 August 2014 and made a further statement on Tuesday 26 August 2014 to make an amendment to her first statement. According to the statement of Senior Constable Catherine Farrel, the officer-in-charge of the investigation, the purpose of the amendment was to correct a date in the original statement. It is to be noted that the complainant's statement was made almost a week after the statement that had been made by the appellant. 2. I turn now to the complainant's evidence-in-chief which commenced on 3 February 2015. The complainant said that she went to lunch at 2pm and left the restaurant at 8pm. She was asked what happened when she arrived, she said that when she walked in the door she could hear Kai yell "mummy" and from that she deducted that Kai was in the en suite bathroom. The complainant then said that she could tell from the appellant's body language that he was "very angry". She was asked to describe the appellant's body language and said this: "His face was red, his eyes were wide open, he had his teeth and he puffed out his chest and the...en suite is only a narrow entrance, only about 80 centimetres and he stood in the, in the entrance way so I couldn't get past to see my son who was in the bath watching the ipad and I wanted to say hello to my son". In answer to the following question the complainant said this: "Justin was angry and he yelled in my face, "you fucking bitch, I fucking hate you" and I, I tried to get past and I said "excuse me". and then I lifted my right arm and tried to manoeuvre past and that's when he grabbed my arm with a clenched fist...". In cross-examination the complainant gave a different version of what the appellant said to her in the initial confrontation. The question and answer are these: "Q. I want to put to you that when you arrived home that Justin, your husband, upbraided you for being intoxicated? That happened, didn't it? A. He was angry that I had been gone for 6 hours. He said, "Where the fuck have you been? You have been gone for 6 hours. You're a fucking irresponsible mother". No". The "no" is clearly the direct answer to the question asked, however the recitation of what was initially said by the appellant is different to what the complainant said he said in her evidence-in-chief and it is to be noted that the evidence in cross-examination was given at the second day of hearing, on 27 February 2015. Quite frankly there was much more plausibility in the answer she gave in cross-examination than in the answer she gave in chief. 1. I return now to the complainant's evidence-in-chief as to her version of what happened between the complainant and the appellant. After giving the evidence in chief which I have just recently recited, the prosecutor directed the complainant's attention to the evidence that she had given that she had raised her right arm. The evidence of the complainant continued thus: "A. Yeah I was trying past, trying because he, he wouldn't let me past, he had his chest up and wouldn't let me past and Kai was "mummy". and so I said "excuse me". and tried to you know normally if I put your arm up like that someone will move past but he stood his ground and would not move and then as I put my arm up then he grabbed it and, squeezed with a clenched hand and squeezed really tightly and then twisted it. Q. I will just describe what you did. So your right arm was held up and it was bent at the elbow? A. Yes. Q. And the fist was clenched. A. Yeah. Q. On that arm? And then he used one hand to grasp around just above the wrist but inbetween the elbow and the wrist? A. Yes. Q. Right once you say that your arm was grabbed and lifted and twisted, what happened then or what did you do? A. Well I yelled "let me go" and Justin wouldn't let go for a little while, and then he let go, and then he said "I fucking hate you, you fucking bitch, you've ruined my life." Q. I will just get you to stop there. Okay so once he said that? A. And then I still hadn't been allowed to get close to my son so I, I felt very scared and threatened. So I went back into the kitchen to grab my mobile phone because I felt, I felt scared and I came back and said "keep yelling abuse at me and I will record you on my phone", I just - I, I thought my phone would provide me protection and if I said that I was going to record it he, he would stop and walk away, which he didn't. As I was walking back from the kitchen back into the en suite he had a clenched fist and he punched me across the face. Q. I just describe action that you made, you held your right arm up with a clenched fist and you held it bent elbows across your face and you pushed what would be your little finger and you used what would be your little finger and you pushed your clenched fist forward? A. Yeah, it wasn't a punch it was across the face. Q. So you made the gesture from the arm being in front of your face and the elbow extending out? A. Yes. Q. And so you say that you're punched across the face or.. A. Yeah on my left hand side. Q. And how did that feel? A. Well I, I screamed, I was in immense pain and my tooth had gone through my cheek, so there was blood, you know I was in incredible pain, I mean my arm was obviously hurting to start with and then my face. Q. And what did you do? A. Well I, then I hear Kai screaming in the bath crying so my first priority was him, I started to cry and I yelled "you just hit me", Justin walked away and said "you worthless bitch, I fucking hate you, I'm going to get rid of you", and I picked myself up off the floor and walked into Kai. At this point I didn't realise I had blood on my face and then Kai screamed- Q. I'll just get you to stop there. You just said that you picked yourself up off the floor? A. Yes. Q. How did you get to the floor? A. I, I fell backwards. Q. And when you say you fell backward when did you fall backwards? A. After I had been hit. Q. And so once you were hit you fell to the floor? A. Yes. Q. And then you said that you heard your son screaming? A. Yes. Q. And then Mr Crotty said things to you? A. Yes. Q. And then continue from where I interrupted? A. And, and then I went into the bathroom and that's when Kai really then screamed and said "mummy you've got blood on your face" and so I quickly grabbed a towel and wiped my face and you know Kai was screaming, got him out of the bath and I said "it's okay, mummy is okay. Q. And then what happened? A. And then I got Kai out of the bath, I dried him and I carried him in because he was, he was screaming, carried him into his room and put his pyjamas on and then tried to calm him down, I just kept saying "it's okay, everything's okay" and I put him on the bed, and read him a book." 1. The complainant then said that she read a book to her elder son for about 10 minutes and then stopped because the appellant had gone into "the room" and I infer that she meant by that into Kai's bedroom. She then said that the appellant yelled out to her in front of their son "you're a fucked mother" and then, because Kai was upset, she left the room immediately and she went into the kitchen. She then said that the appellant followed her into the kitchen and yelled at her words to this effect "It's over, I want a divorce. I've cancelled your credit cards. I'm going to go and stay with my father tonight before I go to Korea in the morning." She then said that the appellant threw $170, I infer in cash, on the kitchen bench and then she went back into Kai's bedroom. She then said that she heard "the front door go" and that led her to presume that the appellant had left the home unit. Before that she had heard him making a telephone call to his father. 2. A few minutes later, she thought about 4 or 5 minutes later, she heard the front door open and did not know who it might be and she then left Kai's bedroom and saw the appellant's father standing outside; the appellant then walked into their bedroom to fetch his bag and then he left with his father. The closing and then re-opening the front door is consistent with evidence given by the appellant and his father that when the father reached outside the couple's block of home units he telephoned the appellant who went down to meet him and then both went to the unit where the appellant completed the packing of his bag before eventually leaving with his father. 3. The complainant was later asked what she did after the appellant and his father had left the unit. She said that she returned to Kai's bedroom, that he was still awake, and she lay with him for about 30 minutes and once he finally went to sleep she left the bedroom and then burst into tears because she was so shocked at what had happened. She then said this: "I felt guilty and awful, my son had witnessed blood on my face and you know, I felt awful. He'd said, 'you know mummy, daddy's, daddy's scaring me'. You know, so I just bawled and I probably cried for, for about 15 minutes hysterically and then I called my girlfriend, Sally". If the appellant and his father left the unit shortly after 9pm, which appears to be to me likely, then the times just recorded from the evidence of the complainant match the timing of her phone call to Mrs Sally Obermeder at about 9.50pm. 1. Shortly before the commencement of cross-examination the complainant gave this evidence: "Q. What did you do in relation to your arm being what you said sore, and the pain that you described after you were hit to the face? A. Well, I was in incredible pain, you know both, both the arm I mean from the bruising you can see what incredible pain that had been inflicted". With the upmost respect I can only regard the words "incredible pain" as hyperbole, for the minor wounds - and I do not use that word in its legal sense - inflicted, the minor physical damage which is shown in the photographic evidence. Other parts of what I have quoted also, in my view, have an air of hyperbole about them. For example I have quoted the evidence that the complainant gave about feeling "immense pain" immediately after the blow which may or may not have been a punch, and of the complainant's tooth which "had gone through [her] cheek" which is clearly hyperbole because her teeth did not perforate her cheek, but rather there appears to be very minor damage to the inside of the complainant's mouth. That damage was described by Dr Lombard in her evidence as being "petechiae" which a medical dictionary tells me are small, purplish haemorrhagic spots on the skin which appear in certain severe fevers and are indicative of "great prostration" as in typhus. They may also be due to an abnormality of the blood clotting mechanism. The term is also applied to similar spots occurring on mucous membranes or serous surfaces. The word can also be used to describe red spots from the bite of a flea. Clearly, the inside of the mouth is a mucous membrane and, accordingly, the petechiae were small, purplish, haemorrhagic spots noted on the inside of the complainant's mouth, which might be the vestiges of some friction or minor blow between the teeth and the inside of the mouth. To suggest that this was a tooth going through the cheek is, in my view, hyperbole. Similar exaggeration can be noticed in the cross-examination of the complainant to which I shall soon turn. [SHORT ADJOURNMENT] 1. HIS HONOUR: Before I turn to the complainant's cross-examination, I should indicate that, in my view, a major failing in the evidence-in-chief of the complainant was that after giving evidence of having been punched or otherwise struck by the appellant, the appellant disappears from the complainant's narrative of what happened thereafter. For example, the complainant did not say whether she got up from the floor after falling backwards by herself or whether she was assisted by the appellant. She said that she heard her son screaming and she then went into the bathroom, where it is common ground the appellant had been bathing his son. She then said that after wiping blood from her face she took her son out of the bath, dried him, and then carried him into his bedroom, and put him in his pyjamas and put him to bed. The appellant is not mentioned anywhere in the complainant's evidence-in-chief, he just disappears from the picture. One would think that he might have been inclined to return to the bathroom and to complete his bathing of his son, but according to the complainant she did so without encountering any opposition from the appellant, and indeed the appellant is not mentioned in the sequence of events after her being struck. This is surprising in my view. 2. I now turn to the cross-examination of the complainant. Commencing at p 67 of the transcript of 3 February 2015, Mr Buchen, who appeared for the appellant in the Local Court, cross-examined the complainant about the history that she gave to Constable Spicer. On that page these two questions and answers appear: "Q. And you told him at that time that you had come home at about 6.30 in the evening didn't you? A. I don't recall that... Q. And you told him that you came home about 6.30 from the restaurant, right? A. I don't recall that." She then said that she had no recollection of talking with Constable Spicer about the time of the incident. On the following page this question and answer appeared: "Q. Didn't you later email Constable Spicer to suggest to change the time of the incident? A. I can't recall." Her attention was then directed to the email of 7.30am on Sunday 10 August. When confronted with that, the complainant said this: "...as I said I rang the police at 10pm, they arrived you know not long after. I'd just been punched in the face and my arm, my son crying, you know I was emotional, I was, I was in shock, you know I wasn't there looking at my clock or whatever and then I had obviously thought more and more and more about it and emailed him in the morning." 1. Of course, that might explain why she gave an incorrect time when initially interviewed by the police shortly after 10.30pm on the evening of 9 August but does not explain her inability to remember things when giving evidence. This evidence was then given: "Q. ...I'm not asking what you're thinking at the moment, I'm asking what you told officer Spicer was the reason that you didn't want to give him a statement? A. Well I was scared. Q. So what did you tell him? A. I was scared, I was embarrassed, I was in shock. Q. Did you say to him anything about not wanting to go through a court process? A. I don't recall, not to my knowledge. Q. Not to your knowledge? A. All I remember saying I was very clear, 'I don't want to charge my husband' because I was in fear of myself. Q. You're in great fear at that time, is that what you're telling us? A. Yes." Q. And what you are very frightened of physical harm that's your feeling at the time? A. I'd just been hit. Q. When you acknowledged when you sorry-- A. Two hours prior." The interjection of "two hours prior" is an admission that the interaction between the complainant and her husband occurred at approximately 8.30pm because the police did not arrive at her residence until 10.30pm. The answer to the preceding question which I have just quoted is clearly an acceptance that she was in fear of physical harm because she had just recently been struck by the appellant. There was then an objection and her Honour asked the complainant a question. The question is at the top of p 71 of the transcript of 3 February 2015 and is this: "HER HONOUR: ...Are you saying is the last thing in those circumstances that you would tell a police officer that you are not afraid? A. Yeah." Later on the same page the complainant confirmed that she was scared, otherwise why should she phone the police? She was scared, she was scared for herself and she was scared for her children. Then this evidence was given: "Q. Did you tell Constable Spicer that you have no fears for my safety tonight? A. I don't recall that. Q. Do you deny saying that? A. I don't recall saying it. Q. Because you've just given evidence about just how - the state of fear that you're in, right, you understand? A. Yes. Q. I'm putting to you that you did say to Constable Spicer, "I have no fears for my safety tonight"? A. I do not recall saying that." Of course the note in Constable Spicer's notebook clearly indicates that he was told by the appellant that she had no fear for her safety that evening and the complainant acknowledged that by signing the constable's notebook. She was then confronted with the notebook and then protested that she did not read the notebook on the night that she signed it. 1. Later the complainant said that on numerous occasions the appellant had told her he "could kill me with one punch". He threatened her many times saying that he "wanted to knock me down and bash me and punch me so I was scared." At the foot of p 75 of the transcript of 3 February 2015 the complainant gave this evidence: "He had tried strangling me before in 2011 when I was holding my little son, he was less than a year old, he put his arms around my throat and left finger marks. He had done Chinese burns on my arms again when I was holding my little son and yanked my arm right behind my back. He has gestured in my face "I am going to fucking punch you, I am going to fuck you in the face," it was not the first time." In other words, the complainant was protesting in cross-examination that physical violence had previously been offered to her by the appellant. This evidence was then given: "Q. Did you also tell Constable Spicer that there had been no domestic violence in the past? A. I did and the reason because...I was scared. Q. You accept that you told Constable Spicer that? A. Yes. Q. And did you also tell Constable Spicer that the accused had verbally abused and threatened [you] for the past four years but has never acted upon it until tonight, did you tell him that as well? A. Yes, I was scared. Q. I'm just asking at the moment, did you tell him that? A. Yes. Q. You understand that you had called out the police to your apartment, you understand that? A. Yes. Q. And you understood that the police were there, once you called them out, to investigate a potentially criminal allegation right, correct? A. Me, it was protection. Q. Did you appreciate that you were under an obligation to tell the police the truth when they came out there? A. Of course. Q. Was it the truth when you told the police officer there had been no domestic violence in the past? A. I was scared. Q. Please answer the question? A. I was emotionally scared." Q. Was it the truth that you told the police officer that there was no record of domestic violence in the past? A. Yes. Q. That was truthful was it? A. There's no record. Q. I see you're making a technical distinction at the time were you? A. Yes. Q. Between an actual act of domestic violence. A. Well there was no record. Q. And whether it had been recorded in the past? A. There was no record. Q. And when you're speaking to Constable Spicer do you say you're mindful of that distinction? A. Yes." 1. The distinction between there being no prior domestic violence and there being no record of domestic violence was one that had been adverted to in an interjection between the Magistrate and Mr Buchen. The complainant had grasped that distinction and used it to explain why she had not mentioned earlier episodes of domestic violence between her and the appellant. That led to the complainant's saying that when she was speaking to Constable Spicer shortly after 10.30pm on the evening of 9 August 2014 she had kept in her mind the distinction between a record of domestic violence and domestic violence itself. That, in my view, is extremely implausible when one recalls what was observed by Constable Spicer that the complainant was "pretty hysterical, she was crying and obviously still shaking while she was speaking with us," which I have mentioned earlier. To make such a fine distinction when one is emotionally upset is in my view quite unlikely. 2. Later the cross-examiner turned to the question of whether the complainant had been provided with the provisional AVO. Initially at p 80 line 27 of the transcript of 3 February 2015 she said that she did not recall those documents. The same averment is made on p 81 line 41 and p 81 line 50. Similar statements appear on p 82 at line 11 and p 82 at line 25. The complainant was then shown the email of 11 August 2014 made at 4.45pm, which is part of exhibit 13. This evidence was then given: "Q. ..just I'm going to read the second paragraph to you. 'I noticed in the AVO that there was no reference to the handgrip he put around my right wrist. I include a photo in my first email. Just wanted to make sure that you knew that,' you see that there? A. Mm. Q. Right, so what's happening there Ms Crotty is that you had clearly had the AVO document and were reviewing it and making suggested corrections to officer Spicer, correct? A. It was not a priority, it wasn't something I was taking in in detail. I'd asked my husband not to be charged. I had not asked for an AVO, all I'd asked was to record something in case something happened to me. I wanted it on record in case something... Q. What was not a priority, the AVO? A. I wanted it on record in case something happened to me. Q. You were very active at this time, I put to you, seeking advice about this situation and gathering evidence to use against your husband, that's what was happening at this time, correct? A. No." Immediately after being shown the email and having the second paragraph read to her the complainant essentially confessed and avoided, that is, confessed that she had sent the email and avoided the implications arising from it by saying that it was not a priority for her. However, in confessing and avoiding the complainant did not make a frank concession that she had been in error in denying having previously read the AVO. The confession was eluded and only the avoidance was given. This, in my view, points to unreliability. 1. The last negative answer, which I have quoted, also in my view is implausible. By the time that the email was generated at 4.45pm on Monday 11 August 2015 the complainant had obtained photographs of her physical injuries, initially the "selfies" taken by her on the evening of the event, then the photographs taken at Dr Lombard's rooms. She had seen Dr Lombard and had made an appointment to see solicitors at 11.30am on the following day and had had certain communications with the solicitors. That becomes an issue later in her evidence as to whether she spoke to a solicitor or merely a solicitor's secretary, but of course it was possible that she may have spoken to a paralegal. The exact identity of whom she spoke to was, in my view, of minor moment compared to the fact that she was seeking legal advice and obtaining it. 2. Later Mr Buchen returned to the question of whether the complainant had seen the AVO document and this question and answer were given: "Q. Ms Crotty, do you accept that after seeing these emails that you must have looked at the AVO document that's MFI A and commented upon it? A. I'd been punched in the face, hurt, and my son had been screaming, "Daddy scares me", I was in no mental state." That essentially is a confession, without a confession, and an avoidance, and the avoidance in my view is completely inapt. It may explain why she gave inaccurate information to Constable Spicer on the evening of the 9 August, but does not explain her lapses of memory of what occurred on the subsequent days. 1. Again the cross-examiner pressed the complainant about her answers about not knowing or not recalling what was in the provisional AVO document and of her reviewing it and the protestation made by the complainant was that it was not her document, that is the provisional AVO was not her document, and it was not something that she wrote and was not something that she was interested in. At p 88 of the transcript of 3 February 2015 the complainant said this: "I probably skimmed it, like it wasn't, it wasn't you know - it wasn't anything I took interest in." Again that speaks to me of implausibility. 1. The cross-examination then turned to the luncheon in the afternoon of 9 August. The complainant admitted that she was picked up at around 1.55pm by Ms Kylie Twomey, that she arrived at the restaurant shortly after 2pm, that champagne was ordered and that one of the ladies attending the luncheon did not arrive till about 3pm. She thought that lunch was ordered at 3.30pm and that the entrée did not arrive until 4pm. She then volunteered this evidence: "I think the mains [courses] were probably served around about, oh geez, about 5.30, yeah it must've been about 5.30 and then the desserts after that. We didn't pay the bill until about 7." The complainant then agreed to the proposition that the dessert was consumed up until 7pm and the bill was not paid until 7. In fact, exhibit 14 indicates the bill was paid at 5.47pm, that is shortly after quarter to six. The bill had been split evenly between the ten luncheon participants. The complainant went on to say that after the bill was paid, she went onto the balcony of the restaurant and took onto the balcony whatever drink had not yet been consumed at the table. She denied that any further drinks were ordered when they were on the balcony. She said that she was on the balcony for only "another hour". She denied buying any drink for herself or anyone else providing her with a drink. The complainant said that she drank six glasses of Verve Clicquot champagne and nothing else to drink. She agreed that table wine was served as well but she did not have any of that and she preferred to drink champagne. She agreed that she left the restaurant by herself at 8pm in a cab that had been organised for her by the restaurant staff. 1. She was then confronted with the bill. It was suggested to the complainant that she moved from the table to the balcony or bar area of the restaurant after the bill was paid at 5.47pm. However, she disagreed with that. She also disagreed that she was drinking between the time that she paid the bill at 5.47pm and leaving the restaurant about 8pm. That evidence is again implausible in my view. The bill clearly was paid at 5.47pm. When the bill is paid the table is usually left. The complainant and her group of friends had gone there for lunch. Dinner, one would expect, is served commencing from 6pm. The appellant gave evidence to that very effect and that is consistent with jury knowledge available to any tribunal of fact. The protestation by the complainant that she did not imbibe any alcohol between 5.47 and 8pm, that is over a period of more than two hours is also implausible because her position all along had been that in six hours at the restaurant she consumed six glasses of champagne. Her position was not that in the first four hours she consumed six glasses of champagne and then abstained from taking alcohol but rather that the consumption of the six glasses was over six hours. 2. Yesterday I pointed out that there was evidence called from others who had attended the restaurant and evidence was also not adduced from a number of people who attended the luncheon and that some of those who attended the luncheon had never been identified in the evidence. No one was called who was with the complainant between 7pm at the latest and 8pm when at the earliest she would have left the restaurant. 3. It was suggested to the complainant that when she arrived back at the "family home", the unit occupied by the appellant, the complainant and their children that she was "very intoxicated". She absolutely denied that. She denied that she was swaying on her feet and she denied that she was slurring her words. The cross-examination of the complainant continued on 27 February 2015. The transcript clearly shows that in the interim the complainant reread the statement that she had made to the police and looked at her telephone records and in particular her telephone bill. She admitted in cross-examination on 27 February 2015 that she could not remember on 3 February 2015 that she had made a call to her friend Kylie Toomey at 7.49pm, a call that she made from the restaurant. Later the evidence suggested that the voicemail message was left at 7.12pm and that at 7.42pm there was a phone call which was a second call to Kylie and then there was a third call made at 8.01pm which lasted for 241 seconds, or four minutes, which could not have been either a voicemail or a text message. However, the appellant had no recollection of those communications. One wonders why the appellant could not recall those telephone calls or what she wished to or did discuss with Kyle Toomey. 4. At p 15 of the transcript of 27 February 2015 the complainant admitted that she left the restaurant "a little after eight", and then said that she got home at about 8.15pm. It was suggested to the complainant that when she spoke with her friend Sally Obermeder she had told her that she came home at about 8.30pm but that was denied. However, the evidence of Ms Obermeder did not establish that admission by the complainant, but that admission has otherwise been made on a number of occasions. 5. In her evidence-in-chief the complainant was asked this question by the prosecutor and the following answer was recorded: "Q. So at the time that you arrived home on that day on a scale of one to ten, ten being very intoxicated, what would you say you were? A. I'd had six glasses over six hours so you know five, six, I mean." When I initially read the transcript I thought that the complainant may have not understood the question correctly, because the answer that she gave would indicate that she was in the middle of the range between sober and very intoxicated, meaning that she was moderately intoxicated. However, it appears the complainant did understand the question correctly, because on the second day, 27 February 2015, this evidence was given: "Q. Wasn't it the case that you've already conceded that on a scale on one to ten, with ten being very intoxicated, that when you arrived home you would have been around five to six on the scale? Haven't you already conceded that? HER HONOUR Q. Was that the case? BUCHEN: Yes it is. Transcript p 58, line 20. WITNESS: About five, well I, I had had six drinks over - I mean, what does five mean? You know, like one, one to ten, what does five mean? I don't really [know] what five, you know was I drunk or was I not drunk? I was not drunk." [LUNCHEON ADJOURNMENT] 1. It is clear to me from the answer which I have just quoted that the complainant knew what a scale of 1 to 10 was but I cannot accept that she did not understand the significance of what a 5 meant when a scale was proposed of 1 being sober and 2 being very intoxicated. A lady with the complainant's background should have some idea of what a scale is and where to rank herself within the scale. It is clear to me that she understood the question that she was asked in chief and that she conceded, in effect, that she may have been moderately or mildly intoxicated. On the same page in cross-examination on the second day, that is p 16 the complainant admitted that she "had a drink" but protested that she was "not drunk" but then stated that she was not affected by alcohol which I find difficult to accept in light of where she had placed herself on the scale between 1 and 10. 2. It was then that Mr Buchen put the question which I quoted much earlier today about the appellant's upbraiding her for being intoxicated and when she answered that in essence the reason why the appellant was angry was because she had been gone for six hours and gave evidence as to statements that he made when she arrived home which I found to be more plausible than the answers that she had given in chief. It was then suggested by Mr Buchen to the complainant that the comments made by the appellant to the complainant when she got home "about being intoxicated" made her upset and angry with him. She denied that was the case, the denial may be referable to comments being about intoxication rather than to the comments being about some insult that she perceived that the appellant was offering to her. In any event it would appear that when she arrived home comments were made which did inflame her. 3. The complainant was cross-examined about the version of events which had been given by the appellant in his interview with the police on 13 August 2014 in which he was to restate in his oral evidence to the Court. It was suggested to the appellant that in the bathroom, that is the en suite bathroom, she commenced tapping her finger onto the appellant's chest and she denied that. It was then put to her that she then started to punch the appellant which elicited this response: "My husband is a black belt in karate. He has been very, very angry. He has been taking steroids and growth hormone. I would not do anything to put myself at jeopardy. Numerous times he has told me he could kill me with one punch. I would not provoke my husband." The answer to that question could have been a simple "no". The complainant gave an answer which to an extent is plausible, that her husband was an expert in the martial art of karate. However then to add that he had been taking "steroids and growth hormone" is merely to insult him, to seek to denigrate him in court which must throw doubts on her objectivity. In answer to a further question the complainant protested that her husband weighed 100 kilos and was 6 foot 3 in height as well as reiterating that he was a black belt in karate. Whether the dimensions attributed to the appellant by the complainant are accurate or not I do not know. However I do know from the statement of Senior Constable Farrell that the complainant could be described "as a slim Caucasian female about 5 foot 6 inches, in her early forties, with long blond hair and blue eyes". She is depicted most clearly in the photograph which became Exhibit 10, a photograph of the complainant standing in the ensuite bathroom of what had been the matrimonial residence. 1. It was then put to the complainant that the appellant blocked the punches with one of his hands and she denied that that occurred, obviously because she has denied that she sought to punch the appellant at all. She denied that the appellant then pushed her away using his shoulder. It was then suggested to the complainant that the appellant turned his back towards her in order to take Kai out of the bath. She said that that did not occur because Kai did not get out of the bath. Her evidence was that Kai "was still in the bath". She denied that the appellant turned to take Kai out of the bath and it was then put to the appellant that after he had done so she sought to force her way past the appellant to reach Kai and that in the process of that occurring she came into contact with the appellant's hip and that caused her to fall and as she fell she hit her head on the bathroom wall. It was then put to the complainant that after that occurred she became incredibly angry and accused the appellant of hitting her. All of those things were denied. 2. The cross-examiner then turned to evidence which he intended to adduce from Mr Brendan Crotty. The complainant maintained the position that Mr Brendan Crotty did not set a foot inside the home unit. She said that he stayed on the mat at the front door. Not only did she say that he stayed there when she was in the kitchen but she denied that he entered the apartment to check on Kai in his bedroom. It was then suggested to the complainant that she said words to Mr Brendan Crotty to the effect that the appellant physically and verbally abused the children, but she denied that she said that to Mr Brendan Crotty. She denied that Mr Crotty spoke to her at all. The complainant's evidence about Mr Brendan Crotty could be summed‑up in this question and answer: "Q. On your version you can categorically say Brendan Crotty did not walk into the apartment? A. Absolutely". She then volunteered that the incident occurred at 8.30 and that Mr Brendan Crotty arrived there 20 minutes later. That evidence is recorded on page 21 of the transcript, 27 February 2015, commencing at line 34. 1. I have considered the complainant's evidence at some length because the law requires me to do so. There were only three persons that could be relevant witnesses to the alleged assault. They are the complainant, the appellant, and the four and a half year old child, Kai, who was not called. He certainly would not have been capable of giving sworn evidence and I doubt that he would have been capable of giving unsworn evidence. In any event, he was not a compellable witness against his father and I am confident that he would not have understood his right not to give evidence against his father. In other words we are reduced by inevitable logic to the proposition that there were only two relevant witnesses; the complainant and the appellant. 2. In Regina v Murray (1987) 11 NSWLR 12 Lee J said at 19E: "In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness' evidence is unreliable." That dictum was cited with approval by the High Court of Australia in Robinson v The Queen (1999) 197 CLR 162 at [21] and in Tully v The Queen (2006) 230 CLR 234 per Kirby J at [55]-[59], and also by Hayne J at [89]. In any trial with a jury I am required, where there is only one essential witness in the Crown case, to give what is usually called a "Murray Direction". I am required to give it when I sit alone as the tribunal of fact. The standard Murray Direction is this: "Wherever the Crown seeks to establish the guilty of an accused person with a case based largely or exclusively on a single witness it is important that the jury are told that they should exercise caution. That is what I am going to tell you now. You must exercise caution before you convict the accused because the Crown case largely depends on your accepting the reliability of the evidence of a single witness. This being so, unless you are satisfied beyond reasonable doubt that the complainant is both an honest and accurate witness in the account she has given, you cannot find the accused guilty. Before you can convict the accused you should examine the evidence of the complainant very carefully in order to satisfy yourselves that you can safely act upon the evidence to the high standard required in a criminal trial. That caution is not based upon any personal view that I have of the complainant. I told you at the outset of this summing-up that I would not express my personal opinions on the evidence. But in any criminal trial, where the Crown case relies solely or substantially upon the evidence of a single witness, a jury must always approach that evidence with particular caution because of the onus and standard of proof placed upon the Crown. I am not suggesting to you that you are not entitled to convict the accused upon the evidence of the complainant. Clearly you are entitled to do so but only after you have carefully examined the evidence and satisfied yourself that it is reliable beyond reasonable doubt. In considering the complainant's evidence and whether it does satisfy you of the accused's guilt, you should of course look to see if it is supported by other evidence." 1. I have scrutinised the evidence of the complainant carefully. I have doubts as to the reliability of some of what the complainant has said. There is exaggeration, there is implausibility, there is clearly partiality, and there is clearly a professed lack of memory when one would not expect there to be such a lack of memory. 2. I turn now to the evidence of the appellant. Firstly I should outline what he said in the electronically recorded interview with the police. Commencing at A21 he said this: "...on August 9 about 1.30 my wife went out to lunch. Ah, I'm not sure who with but she went to Catalina's and she returned home ah, to our place in Bellevue Hill at 8.30pm. Ah, I observed that um, my wife was very drunk. She does like a drink. ...but it looked like she'd done um, had an extra skin full that night...When she came back ah, I said to her 'That's pathetic'. You know you're a grown woman, a mother, and you're still acting like a teenager'. That was potentially a bit of a, um, throwing a match to start a fire really combined with the alcohol. At that time when my wife had arrived I was washing ah washing, ah, bathing my son Kai, he's four and a half years of age. Ah, so after seeing my wife I went to return to the, the bathroom. Now this is an en suite that's connecting to our main bedroom which is close to the front door. So she walked straight in, Camilla was obviously very annoyed at what I had said. Um, now there is some tension between us. Ah, she's quite a fiery character, ah, she's used to getting what she wants. Ah, it's very likely that our relationship will probably end up in divorce...So we tried...So with, following my comments to my wife that I don't think highly of her being so drunk, she followed me into the bathroom. I went back to ah, my son was still in the bath, so I went back into the en suite. Ah, look I got my son out and put him on the mat and put a towel around him...Now my wife followed, came in and then she started a process of trying to ah, really start a fight. So we went through this process ah, of her um, initially making comments about my character, being a loser, thinking you're so cool. You know just repeating comments like that, pretty inane stuff...so I ignored her and laughed at her. That which probably inflamed her...so then with her right hand started pointing her finger and tapping her finger into my ah, my chest, my left chest up towards the shoulder. So look, I laughed at it a bit and that again further infuriated her. She then started punching me and I started ah, first one I laughed at, the second one hit again and I started blocking her with my left hand. Now, at that particular point in time, one of my blocks, ah, my hand touched her shoulder and she moved, she moved backwards...So she would probably regard that as a push. I was just defending myself and I think I was entitled to. But it was not serious at this point of time. It was just like, you're a drunk person, just get your act together right...so I didn't think too much of it but obviously my wife was quite ah quite, um, ah, mad. I then turned my back to her and put my attention back to my four and a half year old son who I was obviously in the process of trying to dry...So I tried to dry his head. Now I had turned my back on my wife. I was facing ah, my son...So he had his towel around him and I was ignoring her, she's being annoying. So I turned my back like this. So then I started finishing all the drying. My wife ah, then reached across tried to grab my son. Like it was nothing, you know. And she said, 'this is my boy, I want access to him,' and I'm trying to dry him. So she pushes me and I push back with my hip...that results unfortunately in my wife um, hitting her head around about here on the tiled wall on the side. So where the main bedroom is here, there's a wall, it's all tiled and then she fell down...so at that time I was a bit shocked, so this was like an accident. So I picked her up and she went a bit crazy so I then brought her into the room, put her on the bed and sat her down. I thought she might calm down. Then she went extra angry at me...I then said, 'this is not good.' Mind you, we've left my son standing in the bathroom, he's not obviously too happy about it. I went and called my father...and said, 'mate this is escalated, I think I need you here to witness this and I think it might be best if I stay away'...so about 20 minutes later my father turned up, so it was about 10 to 9 or so. In the interim, my wife kept yelling at me and I just walked away. Now I had to um my father's going to pick me up. I was actually going to Seoul the next day in Korea. So I tried to finish my packing that I had started. I just walked away. Camilla then finished off my son, brought him around, put his pyjamas on, took him to bed." At the commencement of that quotation the appellant said what his initial comments were to his wife. He gave other versions of his reproach to her later in the interview. 1. At Q56 the appellant was asked what was the initial conversation, but before I recite what he said I should turn to other information he conveyed commencing at A64. What had alerted the appellant to his wife coming home appears to have been the opening and closing of the front door. At A64 he said that she closed the door and she put her keys in a place where they were usually put outside the main bedroom. At that time he said he was in the main bedroom. He heard her key "click" and he came out of the bedroom, and that was when he made the comment. He said that he made the comment when he was in the main bedroom and then he went back into the en suite bathroom to continue bathing his son. 2. According to A58 the appellant was "probably...annoyed that she'd come home a lot later than she said she would". The appellant then said at A59 that he made a comment to her that she was "more pissed than usual". He went on to say that her eyes were glazed, she was swaying and he could "see the fire in her belly". He then said that, "Alcohol was a fire starter for her". He then said that he said to her disapprovingly, "I thought that was pathetic". I find it very difficult to see how one can see "fire in the belly". I can understand that she may have become irritated, upset, aroused, inflamed when the appellant remonstrated with her and it may well be that his noting her anger occurred only after he made some initial remark to her that inflamed her. At the A92 another insult which the appellant conceded to having made to his wife was "another drunk night, good on you", although he thought that he made that remark when she was following him into the en suite bathroom. 3. The appellant was asked how it was that he came to pick her up. He said that she had ended up sitting on the floor with her back against the wall and then he picked her up by lifting her from under her armpits. He then took her into the bedroom and sat her on the main bed. It was after he then sat beside her that "she went ballistic" and accused him of hitting her, to which he replied that he did not hit her and then she accused him of being a bully. It was then that he went to phone his father. 4. At A145 the appellant admitted that his wife was "incredibly angry at me" and then he referred to an email he sent to her after he arrived in Korea, outlining what might be described as a separation plan. That is discussed at some length in A145 and A146, and needs not to be recited because it became irrelevant as the case was presented. The appellant said that he had no intention to harm his wife and that when he moved his hip which struck her and caused her to fall, that was accidental. 5. There was then a discussion about various matrimonial difficulties. Those I need not go into, but one piece of the interview I need to set out because it has been wholly misinterpreted by the Magistrate. Commencing at A158 this was said: "Ah, there's been tension for a while. Um, look I just had to give in to her unreasonable demands. Like, for example, she wants to go to Ibiza in two weeks' time so I, she keeps going at me. Okay. Yeah. No worries. Everyone deserves a holiday. Ah, I want to go business class. Yeah. Okay. Go business class. And so if she was so concerned about me being a bad father and the like, she's already agreed and we've got tickets issued for her to stay in business class all the way to Ibiza. That's...Barcelona...then she's going to Ibiza with her girlfriends, so no husbands and stuff, I'm just going, go have your fun. You've been a mum for a couple of years, you need some time out. I'll give you the benefit of the doubt. Ah, she's booked ah, booked, ah, accommodation in Barcelona. So I guess if she was concerned about me being a really bad and violent father, which I'm sure she's probably said, she was prepared to let my sons be looked after [by] me, by me for two weeks that she's away. So um, I don't know what the status of that is, but it's all paid for. All the tickets are issued in her name. Accommodation's all confirmed." 1. There were then some questions directed to how it was that the appellant knew that his wife had come home at 8.30pm. The appellant then volunteered that he let his son Kai watch television cartoons up to a certain time and that they are on the half hour. He then said that he coaxed his son out of the main bedroom and into the bath and switched on the football. It became clear at the hearing in the Local Court that the routine was that Kai went to bed at 7pm as a general proposition but that the appellant, being like many men an indulgent father, permitted his elder son to stay up later, till 8.30pm, watching cartoons such as Scooby Doo and perhaps the NRL and then had to try to persuade him to go to bed by putting him into the bath prior to putting him into bed. That was another item of disagreement between the appellant and his wife. 2. The appellant towards the end of the interview was asked by Constable Farthing for how long there had been tension between the appellant and the complainant, and the appellant said that that had been the case since the birth of their second child, who I do know was born in October 2013. On that estimate there had been matrimonial tension for some ten months. 3. Early in his evidence-in-chief, which commenced before the Magistrate on 27 February 2015, the appellant said on oath that he had striven to be accurate when he answered the questions posed to him by the police at the interview on 13 August 2014. He was then asked by Mr Buchen what time the complainant arrived home on 9 August and he said, "Just before 8.30". He then gave this evidence, which I seek to shorten by omitting the questions and any extraneous matter: "I soon became aware of Camilla arriving when I heard the keys rattling in the door. At that particular point in time I was bathing my son in the bath which is in the en suite adjacent to the main bedroom. I went out to see, see her, normally greet her. It became very apparent that Camilla was very drunk. She's been swaying, her eyes were glazed over as usual, and when she started speaking to me I became - the words were slurred. So that particular point in time, I chipped her...I said - disapprovingly I said to her, that's pathetic. You're a grown woman and you're a mother. Get your act together'...As I had been bathing my son I returned to the ensuite via the main bedroom and I took my son out of the bath. I placed him on the mat in front of the vanity and put a towel around him. At that particular point in time Camilla had followed me into the ensuite to have further words with me...Camilla became aware...that Kai was still up. Kai usually should be in bed by 7 as it was a Saturday night and I am perhaps a bit more relaxed with parenting timetables, I let Kai stay up. It was apparent that Camilla was very annoyed at that particular point and she told me that I was a bad parent, I was a loser and....you think you're way too cool". By that time Camilla had entered the ensuite bathroom. The appellant's evidence continued thus: "So Camilla had proceeded to use her right hand and she poked me in my left shoulder a couple of times. I sort of looked back, 'what are you doing?'. Camilla then graduated, I think in frustration to my comments to her with a punch, I call it, it's like a downward motion like that [a hammer action is the best description]...I put my left hand to stop it. She continued doing that a couple of times. Then I was frustrated with that and I went, 'get out of here, what are you doing?' and pushed my left hand against her right shoulder. She did move back but didn't fall over. I thought that was the end of the event. Camilla had let off her steam. I then turned back - my attention back to my son Kai. Mind you, he'd been standing quietly on the mat while his parents - with a towel around him with his parents fighting, so that's not a particular proud moment. I started to try and dry him again and where I was standing at that point of time was right next to the vanity. It's a small area, it's a wet area. Camilla tried to push past. She was going, 'Kai, Kai'. She bounded off my, my left hip, cause I was bent over like, like this, drying my son like that. There was a vanity here ...She tried to get between my...hip and the vanity corner. She then bounced off that and she hit the side of her head on the tiled wall which is adjacent to the vanity...She fell down. She fell down on her backside with her head against the wall, slumped against it. I was very concerned. I then picked her...up. I think she was in shock. I then picked her up and took her into the bedroom. The bed - sat her on the bed which is, you know, probably less than 2 metres away or a metre away from the....door that joints the ensuite to the main bedroom...And sat her down, and at that particular point in time I think Camilla registered that she'd been hurt. I thought she was in shock, at that particular point in time she exploded, 'how dare you, how you hurt me, you hit me', and I didn't do any of this. Her eyes - it was the most angry I'd ever seen Camilla, and I, look I was very concerned about the response and where the, the next stage of the fight was going to go to". 1. The appellant then denied calling his wife a "fucking bitch" or saying that he hated her and denied saying that she had ruined his life. The appellant then had his attention directed to the complainant's mobile phone. He then gave this evidence: "During - in between the process of - after I'd given Camilla the, the push away, she went back into the main bedroom, I assume back to her bag, and come, come back with the mobile phone]...it was more like a threatening use of the phone in that she said, 'I'll record you. I'll take you to the police'." The appellant then denied calling the complainant a worthless bitch or, again, saying words to the effect that he hated her and he wished to get rid of her. The appellant then returned to what happened in the bedroom after the complainant had fallen in the en suite bathroom and been carried to the bed by the appellant: "So I sat Camilla down on...the bed in the bedroom and I was pretty surprised by the response of her anger. You know, she's a little person but the anger that came out of her was pretty disproportionate and I was actually concerned about Camilla, and I knew immediately that she had thought that she'd been hurt and I'd, I'd tried to hurt her. So what I did was, I thought this is going to get out of control, I'm going to immediately call my father. I'd been planning to go to Korea the next day so I thought the most sensible thing was (1), to have my father come, come over and just pick me up, make sure he could, he could see that everything was okay. I was concerned about it escalating and the fact that the third party could actually help keep that a bit more level-headed. And the other thing was I didn't want to particularly lie on a bed next to a person angry at me when I had to get up and fly to Seoul the next morning...so I called my father and asked him to come over and that was pretty much - Camilla and I did not interact after that particular point. I started trying to pack my bag. This is after I had a chat to my father to come over. He in between the phone call and him actually arriving, I proceeded to pack. I'd sort of been starting, trying to do it through the course of the evening and so I finished it. Dad had arrived. It's probably about 20 minutes after the argument with Camilla. So when Dad came in he sort of wanted to know what was happening and so he, he just sat there all sorry, he stood there in the kitchen adjacent to the door inside the house. I packed my bags and before we left dad and I - well I first checked on Kai and he was in the room with his mother, they seemed okay. Kallen was already asleep. Dad came in separately, had a look, he wanted to satisfy himself, and then we went back to Cammeray." SHORT ADJOURNMENT 1. The penultimate area addressed in the appellant's evidence-in-chief was the fact that he had no alcohol on the evening of 9 August 2013. There is no suggestion that at any material time was the appellant affected by alcohol. The final issue addressed in the appellant's evidence-in-chief was whether he punched the complainant or struck her in the facial region or whether he squeezed her wrist at any relevant time. Those allegations were denied by the appellant. 2. Amongst other things, the appellant was cross‑examined about his allegations about the complainant being under the influence of alcohol on the evening in question. It was suggested to the appellant that when the complainant came home she was "very drunk". The appellant answered, "Yes, she was intoxicated". Intoxicated can merely mean drunk. I have difficulty in understanding whether the appellant meant that, yes, the complainant was very drunk, or, yes, she was merely intoxicated. Shortly after the appellant gave this evidence: "I have seen Camilla drunk many times. She gets drunk easily, she's only a little person. I used to work in bars. I've observed all forms of drunken behaviour, and when Camilla came through that front door I immediately saw Camilla was drunk." He then stated that at least he could usually identify people who were drunk and he could do so straight away. Later in answer to that same line of questioning the appellant said: "I could see the…glazing of the eyes, and certainly the uncoordinated movements in her high heels at the time." That is one discrimen for being intoxicated that I had not come across previously in 21 years on the Bench. 1. The appellant was cross‑examined to suggest that when the complainant arrived home she said "I'm sorry I'm late" and he said that she did not say that. I should point out that I have not found any such averment in the complainant's evidence. At page 69 of 27 February 2015 the appellant was cross‑examined about what he believed were the motivations behind the complainant's anger. He gave this evidence: "There were two issues for her. The fact that I chipped her, using my words, and the second thing, and In think she felt more righteous about, was the fact that Kai was still up". By using the words "I chipped her" the appellant was referring to his reprimanding the complainant. 1. When cross‑examined as to the mechanism of the incident relied upon by the appellant, the appellant said that if a person stands between the vanity unit and the wall of the ensuite bathroom, opposite the vanity, another person is unable to pass. When one looks at the photograph which is exhibit 10, one can understand that evidence entirely and accept its accuracy. In cross-examination by the Magistrate the appellant was asked about his "flicking his hip" and he said that he did try to block her with his hip to frustrate her advance towards their son but at the time he did that he had no intention to cause any hurt. 2. The only other significant evidence to have been given in my view by the appellant in cross-examination concerns his evidence about the actions of his father later in the evening which I do not need to go into at this point. The only other witness called in the defence case was Mr Brendan Crotty. At the commencement of his evidence he gave details about his background. It is worth noting that evidence. He formerly worked in areas of surveying, town planning and business administration. He was at the time he gave evidence a member of the Council of Macquarie University. He was at the time of giving evidence on 27 February 2015 Chairman of the Western Sydney Parklands Trust. He was also a director of a number of public and private companies. It is clear from that evidence that Mr Brendan Crotty is an accomplished man with many important and significant roles in our community indicating that he is a man of good character and a man of public standing. 3. As I said earlier, he estimated that he received his son's call at about 8.30pm on 9 August 2014 and arrived outside the unit occupied by his son and daughter-in-law between 8.54 and 8.57pm. He was asked what he did when he arrived in his car. He said that because he was not very familiar with gaining access to his son's apartment, he called his son and asked him to go down to street level and to meet him at street level. That occurred. He said that the appellant explained to him when they met downstairs that there had been some disagreement between his son and his daughter-in-law. He then said this: "At street level, I then started to hear that Justin had been bathing Kai at the time when Camilla came home and there had been some kind of disagreement in the ensuite or bathroom." He was asked to try to remember the words that were said to him by his son. He said this: "A. The words, the words went something along the lines that he had been bathing Kai, Camilla had attempted to push past him, 'I don't know whether to grab Kai or not' and that Camilla had slip on, on the bathroom floor and, and that was it. Q. Just tell me where you went as you approached the apartment? A. I was with Justin and when he opened the door I walked in and then I followed him to, through to the bedroom, Camilla was standing in the kitchen when I arrived." He confirmed that he walked into the apartment. He said that he followed Justin to observe him taking his bags. He said that knowing that there had been an argument between his son and daughter-in-law, he did not want to stay in the kitchen with his daughter-in-law and therefore he simply followed Justin "down to the bedroom" although that does not necessarily mean he entered the bedroom but he may have stood outside in the hallway. 1. He was then asked whether there was a point of time when he was in the kitchen with the complainant and he replied that there was but that was more at the end of his visit rather than at the beginning. His evidence then continued thus: "A. Sorry I went, I went down to the bedroom where Justin was packing his bags. I inquired about the welfare of the children because that was frankly my biggest concern, and I then - Justin said to me that Kai was asleep but I wasn't really satisfied with that and we then walked down to Kai's bedroom to discover that he was indeed asleep. Q. You actually walked into the bedroom did you? A. Kai's bedroom? Q. Yes. A. Yes, I did. Q. You saw Kai there? A. He was asleep, yes. Q. Then what did you do after that? A. Well, Justin was ready to go. I walked out with him through the kitchen and as I was leaving Camilla said to me, 'Do you realise that Justin physically and verbally abuses his children?' I said to Camilla, 'I don't believe that' because I had observed him with his children on numerous occasions and really that was that. We left the apartment. Q. Did you have an opportunity to make any observations of Camilla while you were in the apartment? A. Well, she seemed to be intoxicated and her voice was slightly slurred and initially she seemed to me to be a bit unsteady on her feet." Mr Crotty senior then said that he asked his son whether the children would be "okay", or whether Mr Crotty senior and his son should take the boys with them and that the appellant replied that they should not do that as the appellant did not want "to escalate anything" and therefore they left and drove to Mr Crotty's home at Cammeray. 1. In cross-examination, Mr Crotty senior admitted that his son had told him that as his son was bathing Kai, Camilla pushed past and slipped on the wet floor of the bathroom. He was then asked whether his son said anything else about the slip and he then said this: "Only that she had attempted to push past him and he put his hip out of the way to block her or whatever, and somehow, I mean the floor obviously must have been slippery and she fell on the floor. Q. Did he say like that she hit something on her or anything else? A. No, she - he did say that she may have bumped her head as, as she slipped down and may have hit her head on the wall, I got the impression that, you know, that was a secondary issue." On p 95 of the transcript of 27 February 2015, Mr Crotty senior admitted that "to be perfectly frank" he was more concerned about the welfare of his two grandsons than he was about either his son or his daughter-in-law. He was then asked whether his son had told him that the complainant was "very drunk" and Mr Crotty senior denied that he had been told that by his son. He said that his son had told him that his wife had been drinking, but that his son did not use the words "very drunk." This evidence was then given: "Q. You've given evidence that she seemed to be intoxicated, her voice was slurred and initially she was unsteady on her feet? A. That, that was my impression. Q. She hasn't said anything to you because you've walked in with Justin and she's standing in the kitchen? A. She hasn't said anything to me at that point. It was only when she said to me that Justin had been physically and verbally abusive to the children that, that her voice was slurred, because she didn't speak to me when I walked in. Q. When you walked in and you saw her in the kitchen you say she was unsteady on her feet? A. She, she did appear to be a bit unsteady on her feet. Q. You're walking straight through the kitchen? A. Yes. Q. You said in your statement that you provided which has the date of 25 February. A. Yes. Q. You said that she was 'unsteady on her feet and I saw her swaying'? A. That's correct. Q. Your first thought that she was intoxicated? A. That's right. Q. And I mean to some extent if somebody said to you that someone had been drinking during the afternoon you wouldn't be surprised that they were swaying a bit? A. That my mind wasn't conditioned by that to any great extent, it was a factual observation that I made." 1. Later this exchange occurred: "Q. It didn't occur to you when Justin said that she'd hit or slipped in the bathroom and hit her head to seek for Camilla any medical attention? A. Well, when I looked at Camilla and I'm fairly familiar with football injuries and head injuries and all sorts of stuff, it didn't even occur to me that there was anything wrong with Camilla. Q. When you say that you're familiar with types of injuries, your qualifications are surveying and town planning, you don't have any medical training do you? A. I've done First Aid and I've played football for a long time and I've seen a lot of concussion, including experiencing it myself, but I was not, I was not concerned about Camilla getting medical attention." 1. The cross-examination of Mr Brendan Crotty finished in this fashion: "Q. I'm going to put to you that when you entered the apartment you stayed in the front door area, so that it would be near the kitchen? A. I am very, very, very clear on what happened. Q. I'm going to put to you that you didn't go to Kai's room? A. Ma'am, I know what I did and what I saw. I'm only giving evidence on a very narrow range of issues, and I'm absolutely certain that I was in Kai's bedroom because I, I saw Kai. Q. I'm going to put to you that you didn't go to Kai's bedroom with Justin? A. I can't recall whether I went there with Jus - no, I didn't go with Jussy. Q. Mm-hmm. A. Yeah. Q. I'm going to put to you that in Kai's room was Camilla? A. No." 1. The inconsistency between the evidence of the appellant and his father concerned the visit to Kai's bedroom. Mr Brendan Crotty was adamant that before he left the apartment he went into Kai's room by himself and saw that Kai was asleep. He denied that he saw Camilla in the room with Kai and he maintained that he went there by himself. The appellant believed, and I use that verb advisedly, that Mr Crotty senior went into Kai's room with the appellant himself, but it would appear that there were two visits, one involving the appellant and one without the appellant. This evidence was given by the appellant in cross-examination: "Q. After you got your belongings from the master bedroom, you left with your dad? A. After checking on Kai. Q. When you say that you checked on Kai, Kai was asleep? A. I can't recall. I think he was getting close. Q. Your dad didn't go with you to check on Kai, did he? A. No - well, he, he did it separately. So I did it first and my dad asked me, 'are the boys okay' and he probably wasn't satisfied with my answer so he made his own enquiry. I directed him not to look at Kallen because let sleeping babies lie. So dad did have his own independent view. Q. When you say you went to check on Kai, your dad wasn't with you? A. No, so there's two separate occasions. Like I popped my head in to make sure everything was all right. Camilla shooed me out pretty quickly. Then dad separately, before he would go, he said, 'Look are the boys okay? Should they come with us?'. I said, I said 'No, leave them alone', then he made his own enquiry, so he's checked on Kai and he didn't go to see Kallen, he took my word for it. Q. Before you go and check on Kai, Camilla is in the kitchen, isn't she? A. There's two separate events. Camilla comes and goes, right? You're joining dots ahead of each other. Q. You're giving your version. You say that when you come back with your dad, your dad is in the front area, you say the kitchen area in your direct line of sight, and you're in the bedroom packing your things… A. So you're asking me what.. Q. That's where you are? A. …what are the necessarily - the steps that was taken after escorting dad from up - down at Bennelong Crescent, up the stairs of the apartment? Q. Then you're in the apartment packing? A. Yes. So dad stayed behind the front door, the front door was open, he was inside the apartment in the kitchen area. I then went to the main bedroom, continuing my packing, computers and all that stuff. Q. When you're continuing your packing Camilla comes into the kitchen? A. Correct. Q. At this point on your evidence you haven't checked on Kai for that final time and your dad hasn't yet? A. That's correct. Dad just walked in pretty much. Q. So prior to you leaving, so you've packed your belongings and you're about to leave and that's when you go and check on Kai, is that fair to say? A. Yes, but - so the events where I was packing, Camilla came out, they had their conversation, I'll let the witness statement speak for that, I couldn't quite hear it all. When I'd finished packing and Camilla had finished her conversation with dad I think she went back, I checked on Kai, I left, I was satisfied he was all right. Dad then separately did his own enquiry and kept looking the same. Q. And when you say Camilla went back, she went back to Kai's room? A. Yes, as I understand". There was then a question with a lengthy answer and eventually it was suggested to the appellant that the complainant would have been in Kai's room when his father went to look in on Kai and he said that he believed that that was so. However, Mr Brendan Crotty's evidence is to the contrary. 1. I had become confused earlier in these reasons about the significant inconsistency to which I was referring. That was not whether the appellant and his father visited Kai's bedroom together but whether Camilla was present in the bedroom when Mr Brendan Crotty entered it to check up on Kai. Mr Brendan Crotty said that the complainant was not in the bedroom at the time that he checked up on Kai, however the appellant believed that she was in the bedroom. This conflict is only of minor significance and may be thought by some to be irrelevant. However, the better view of the evidence is not the belief of the appellant but the sworn evidence of Mr Brendan Crotty that when he visited Kai in his bedroom he was asleep and that the complainant was not present in it. The attempt to draw an inconsistency between the evidence of the appellant and the evidence of his father is, in my view, of little or no moment. 2. In essence, the appellant's evidence is consistent with the record of interview that he gave to the police and is not, in my view, in any way inconsistent with the evidence given by Mr Brendan Crotty. 3. Again it is necessary to consider relevant legal principles. In any jury trial I am required to direct the jury in a certain fashion where an accused person gives and/or calls exculpatory evidence relevant to a critical element in the Crown's case. The direction is this: "The accused has given and called evidence in support of the accused's case to the effect that he did not intentionally assault the complainant. If, having considered that evidence, and the submissions of both counsel in relation to it you accept that evidence then of course you must acquit the accused and bring in a verdict of 'not guilty', because it would follow that the Crown has not established beyond reasonable doubt its case in relation to an essential matter which it must prove. If, after having given consideration to the evidence of the accused and the evidence called on his behalf and any evidence which the Crown asks you to take into consideration, you do not positively accept the evidence of either the accused or his witness in support of the accused's case but that evidence leaves you, nevertheless, with a reasonable doubt as to whether the Crown has made out its case in respect of any essential matter which it must prove, then you are bound, in law, to bring in a verdict of 'not guilty'. In other words it is not the position that you have to believe that the accused and his witness are telling the truth before the accused is entitled to be acquitted. As I have previously emphasised to you throughout the whole of this case, it remains the position that the Crown must establish beyond reasonable doubt the charge which it brings against the accused and it is never for the accused to prove that she or that he is not guilty." 1. Another form of that direction requires me to tell the jury that if the evidence given by the accused leaves the jury with a reasonable doubt as to whether the Crown has made out its case in respect of any element of the offence, or any essential fact that it must prove, then the jury are bound in law to bring in a verdict of not guilty. In other words, a jury does not have to believe that the accused and his witness are telling the truth before the accused is entitled to be acquitted. If at the end of their deliberations the jury finds that there is a reasonable possibility that the version presented by the defence is true, then the Crown has failed in its obligation to persuade the jury of the accused's guilt beyond reasonable doubt. In other words, the defence case only needs to raise a reasonable possibility that the version presented by the defence is true. 2. When I consider all of the evidence I cannot exclude as a reasonable version of events the version of events given by the appellant, corroborated to some extent by the evidence of his father. 3. Before I turn to the reasons of the learned magistrate I must refer to the submissions of counsel. I shall do so in the morning. Stood over, part heard, to 10 o'clock in the morning on the morrow. LEWER: Your Honour, if I could enquire, just so the appellant does have counsel appearing - is your Honour able to give me an indication how long your Honour may be? HIS HONOUR: I should be finished by morning tea time. [ADJOURNED TO THURSDAY 24 SEPTEMBER 2015] 1. Immediately prior to adjourning yesterday I announced that prior to considering the reasons for judgment of the Magistrate I would consider the submissions of the parties. However, before I do so there is one further area of the evidence that I should canvas and that concerns communications between the complainant and the appellant during the luncheon on 9 August 2013. 2. At 3.57pm the complainant sent to the appellant a text message which is: "Just a heads up our meals hasn't [sic] arrived yet. xx." The text message confirms, firstly, that the meals were served very late in the afternoon and, secondly, that there was affection at that time between the complainant and the appellant because the complainant said that each of the "x's" represented a kiss and there is no dispute about that. 1. At 3.59pm the complainant sent as a text message a photograph taken by a waiter of the party of ten ladies sitting around a circular table with Sydney Harbour in the background. It is clear from the heading of the text message that the complainant sent that not only to the appellant but to a lady identified as "Sarah" and to three other persons. 2. At or around 6.38pm the appellant sent to the complainant a voice message. That is referred to on page 61, line 1 of the transcript of 3 February 2015 and at page 54, line 16 and page 60, line 6 of the transcript of 27 February 2015. The voice message is set out in full on page 60, commencing at line 6 of the second day's transcript. It is this "Are you bother coming home or not? As usual you lie. I want to know if I'm still going to Korea. Are you going to call[sic] some selfish act? Who are you with? What are you doing? I don't know. At least give me the courtesy if you're not going to be so late as you are let me know what you are doing." It is to be borne in mind that the appellant was flying to Korea the next morning and that trip required him to leave home at 6am. He had anticipated that his wife would be home at 6pm "plus or minus an hour". However, clearly at about 6.38pm he was becoming concerned as to the hour at which the complainant would be returning to the matrimonial residence and clearly he was concerned that if the complainant stayed out late his arrangements for travel might be placed in jeopardy. 1. At 7.42pm the appellant sent to the complainant a text message, it is part of exhibit 9. The earlier text messages sent by the complainant are contained in the same exhibit. The appellant's text message of 7.42pm is this: "Are you going to bother to let me know your plans. Are you out all night? Do I have to cancel my trip to Korea - I leave here at 6am." Clearly the appellant's annoyance about his wife's failure to answer his earlier voicemail and his annoyance at the complainant's not having come home yet were irritating the appellant. 1. The evidence discloses three reasons for the later unfortunate interaction between the complainant and the appellant. They were firstly, the appellant's annoyance that his wife had not come home at 6pm or communicated to him what her plans were and the resulting concern about his travel arrangements for early the following morning. The second reason was the appellant's perception that his wife had been taking alcohol perhaps to excess. The third cause of grievance between the couple was clearly the annoyance to the complainant caused by the appellant's not having put Kai to bed at 7pm, his standard retiring time, and his still being up at 8.30pm when the complainant came home and when Kai was still in the bath. 2. This is a criminal case and not a civil case. Were this a civil case, I would be inclined to find that the appellant's primary cause of annoyance was his wife's staying out and not communicating to him her expected time of arrival home and his concern about interference with his travel arrangements. Again, if this were a civil case, I would be inclined to find that added to that annoyance was his perception when his wife arrived home that his wife had been drinking alcohol and may have been affected by it and that rapidly formed a part of his complaint to the complainant about her conduct that afternoon and evening. Again if this were a civil case, I think it likely that the complainant's repost was to remonstrate with the appellant about his not observing Kai's usual routine and having permitted him to stay up beyond his appointed bed time of 7pm. 3. I turn now to the submissions on behalf of the appellant. The appellant's learned senior counsel pointed out that the evidence of the assault alleged by the complainant was inconsistent and therefore unreliable. He points out to eight separate passages in the transcript where the alleged assault was described and points to internal inconsistencies. Those inconsistencies as alleged by the appellant need to be considered. They are these: 1. At p 55 line 30 of the transcript of 3 February 2015 the complainant said that the appellant "punched" her across the face with a closed fist. 2. The Prosecutor then described the complainant's action for the record as "a lateral backhanded movement of the right arm from the witness's left to her right". 3. At line 36 on the same page of the same transcript the complainant said that the action involved "wasn't a punch". 4. At p 61 line 23 of the same transcript the complainant described the action of the appellant as a "push punch". 5. At p 63 line 17 the complainant stated that the appellant "punched me across the face". 6. At p 21 line 47 of the transcript of 27 February 2015 the complainant said in cross-examination that the appellant's "whole upper forearm of his arm" struck the face. That action was then described for the record as a "downward hammer motion" with the underside of the right wrist and forearm. 7. On the following page of the same transcript at line 17 the complainant said that she was "fairly sure" that it was the appellant's right arm rather than left arm. That was despite the fact that she had always earlier referred to the appellant as having used his right arm to strike her. 8. In exhibit 13 the email sent by the complainant to Constable Spicer on 11 August 2014 at 4.45pm, the complainant clearly stated, as I have earlier quoted, that she was "not really sure if it was his right or his left hand" that struck her. 1. The submissions on behalf of the appellant then continue thus: "The change in the witness' description of the assault have the potential to reflect adversely on her credibility. The initial description - a lateral, backhanded left right movement with the appellant's right fist - would have resulted in injuries to the right side of the complainant's face. This was contradicted by the injuries, which were to the left side of her face. The witness later described (in cross-examination, during the second day of her evidence) a downward hammering motion with the appellant's right fist and the entire forearm being used as the plane of contact. It is an available inference that the witness changed her evidence in an attempt to accommodate the injuries which descended in a vertical plane from her left forehead/hairline down to her left cheek." There is significant substance in that last submission. The mark on the complainant's left forehead she pointed out was immediately below her hairline and hence the reference that was made by learned senior counsel for the appellant in the last paragraph of the quotation I have just cited. 1. Counsel for the appellant also made submissions about the evidence of "intoxication". Paragraph [24] of the submissions is that: "The evidence of intoxication is significant for four reasons. First, it impacts adversely on the reliability of [the complainant] as a witness and her ability to accurately recall the circumstances of the incident. Second, intoxication (to any degree) is a circumstance that makes a fall in the bathroom (with its wet floor and confined space) more likely. Third, the evidence impacts adversely on [the complainant's] credibility, because the witness categorically (and unreasonably, it is submitted) denied under cross-examination that she was affected by alcohol when she returned from the long lunch... Finally, this body of evidence indicates that her Honour erred when she 'entirely' rejected the appellant's evidence on [the complainant's] intoxication (which then formed the basis of her decision to 'reject this evidence entirely')." 1. Leaving aside the use made by the magistrate of the evidence concerning the consumption of alcohol, there are in my view four reasons for accepting that evidence concerning alcohol intake is significant. The first is that proposed by Mr Dhanji SC, that it may affect the ability of the complainant to accurately recall circumstances of the event in question. The second is that a person affected by alcohol can misperceive what is occurring to or around him or her, and in that fashion makes the evidence potentially unreliable. The third is that the taking of alcohol can render a person more susceptible or vulnerable to injury because of the interference with bodily coordination, in other words my third reason is similar to that advanced by Mr Dhanji that it makes a fall in a bathroom with a wet floor and in a confined space more probable. The fourth consideration is one not only particular to this case but one often confronted by courts. The evidence of the taking of alcohol can affect the credibility of a witness if there is any dispute about the amount of alcohol consumed. It is commonplace for persons to underestimate the amount of alcohol they consume when it is a fact in issue in any sort of proceedings. For many years I have had cause to remark that there are three questions to reach that is usually impossible to obtain any reliable answer. The first question is how much do you drink, the second is how many cigarettes do you smoke and the third is not currently relevant but is in the same vein. People tend to underestimate their consumption of what might be thought to be substances that might adversely affect them. I need not consider further Mr Dhanji's submissions. 2. On behalf of the Crown, Ms Roatz stressed the significance of "the immediate complainant" to Mrs Sally Obermeder, there is force in that submission. However, the first person to whom the complainant could have protested that the appellant assaulted her was the appellant's father; she did not do so on the evidence before me and before the Local Court. A large part of the Crown submissions relate to that question to which I shall shortly refer. 3. The fourth section of the Crown's written submissions make two points which I need to mention. The first is that the appellant conceded in cross‑examination that when the complainant tried to push past him his back was towards her. Ms Roatz then raised the point that if the appellant's back was towards the complainant how was he able to see her hit her head on the tile wall. That is a valid observation. However, human experience must be taken into account. The area was small, he could have heard the complainant hit her head against the tiled wall and looked quickly around and immediately perceived what had happened. Considering the small area in which the action occurred, I do not believe that there is any force to that submission. 4. The final point made in that same section of the Crown's submissions is that the appellant did not observe any injuries on the complainant other than a bump on her head. Ms Roatz pointed out that the police saw a bruise in the area of the complainant's left eye. However, again, human experience must be taken into account. Bruises take time to appear, they do not appear straightaway as might the appearance of blood from a cut or an abrasion. Bruises take time to come up and an eye that was found to be red at some stage might present as a "black eye" the following morning when the bruise has time to come up. 5. I turn now to the Magistrate's reasons. I have already pointed out in the first page of the reasons the Magistrate incorrectly was of the view that the complainant returned to the residence "about 8pm", that occurs on line 19 and line 41 of p 1 of the transcript of 15 May 2015. Insofar as it amounts to a finding, it is erroneous and contrary to the evidence, contrary at least to the weight of evidence which all points in the direction of her returning at 8.30pm. 6. Commencing at line 45 on the same page her Honour said this: "On her evidence there was perhaps a greater degree of hostility, on his evidence a long history that involved concerns in relation to alcohol intake. But also, as I understand it, from looking at his record of interview with the police that although they had some problems, there was a trip planned together to Spain at some near stage in the future and so they were possibly riding out whatever these difficulties were which might occur in quite a lot of relationships, or that is at least the picture that was painted." Again the learned Magistrate erred in fact finding. The trip to Barcelona and Ibiza was for the complainant alone with lady friends and not a trip to be shared by the complainant and the appellant. 1. At p 2 of her reasons, at line 26 the Magistrate found erroneously that the police arrived "at about 10.10pm". The evidence is clear that it was 10.30pm. At line 42 on p 2 of her reasons, the Magistrate commenced this observation: "Police at the scene noted her condition, she was upset, she clearly had been crying, there was no observation of intoxication, so that was not noted, although what I do note is that Officer Spicer indicated he was with her for some time. He noted her injuries, her bruising, her crying and that she did not want her husband charged." The police arrived at 10.30pm. The complainant signed Constable Spicer's notebook at 10.46pm indicating that Constable Spicer was with her for 16 minutes. Whether that is a lengthy period of time or not is an arguable question and it is difficult to know what the Magistrate meant by the words "for some time". It is correct that there was no mention made either in Constable Prow's statement or in the evidence of Constable Spicer as to intoxication or affectation by alcohol. No question concerning that issue appears to have been asked. When Constable Spicer gave evidence, he was not asked in‑chief any question about what he may or may not have observed about the complainant's affectation by alcohol and therefore that was not the subject of any cross-examination by learned counsel for the appellant in the Court below. However, a complete absence of any observation and a complete absence of any evidence on the subject does not create positive evidence that the complainant was not affected by alcohol. The evidence from the police on this issue is completely neutral and does not prove a positive, that is it does not prove that the complainant was not affected by alcohol. Furthermore, it could easily be argued that the complainant's emotional state which was clearly observed by Constable Spicer and Constable Prow may have masked or hidden any affection by alcohol or made it such difficult to discern. Added to this lack of positive evidence from the police on this issue is the complete absence of any evidence from Sergeant Adams who was present at the residence some time shortly after 10.30pm. 1. The learned Magistrate then went on to note that the evidence of the complainant was that the injuries were caused by the appellant's "punch" and the Magistrate then pointed out that that punch was called a "push punch" with a closed fist that had "effect across her face". She then continued thus: "I note that there is some inconsistency in relation to the complaint where she says that that was caused by the right hand but the next day in relation to her email she clarified that she really was not sure what hand it was and I would have to say from looking at her evidence that she has maintained that she was not certain about which hand was used and that it happened quickly and clearly she was injured. I note there was some variation in the version given of the action taken by the defendant's hand. She gave an indication or she acted as I understand it, an action across her body or across her face and then on the second day of cross-examination when it was resumed, a hammer down or a hammer down movement. It has been submitted by the defence that that inconsistency is significant, I should scrutinise it and as I understand it should cause me to reject her evidence. I note these comments and in relation to that aspect of the evidence, I also note that she maintained that she really could not recall. It happened quickly. It was not obviously a forward motion in relation to what one would describe as a classic punch and that is something that she maintained that action across her face. I also note that Mr Crotty is six foot three or thereabouts, Mrs Crotty is considerably smaller, I am not sure of her height but I would estimate possibly five foot four or something around that height. Even on those things that are not disputed, that is that she was injured and that there was hostility, it would not be implausible that details would lack clarity. But on her own evidence on scrutinising it, I find her explanation is plausible in light of the hostile aggression and the injury that she suffered which are clearly entirely consistent with her allegation then it is plausible that there could be some uncertainty and in those circumstances that alone is not something that I would use on scrutinising to in [fact] reject her evidence." 1. The first thing to note is that the learned magistrate noted inconsistency and variance in the complainant's evidence. However, she did not think that it affected its plausibility. Saying that something is plausible means that it is possible and could be accepted. It does not mean that it must be accepted and it does not mean that it proves something beyond reasonable doubt. 2. I do not know whence the magistrate formed the view that the complainant was five foot four inches tall. There was positive evidence from Senior Constable Farrell that she was five foot six inches tall. The estimate appears to have been the magistrate's own rather than the evidence that was actually before the court. The estimate of the appellant's height is that given in evidence by the complainant and that estimate was not disputed. 3. A large part of the reasoning of the magistrate appears to have been her view that the appellant's injuries were consistent with the action, whatever it may have been, that the complainant alleged was taken by the appellant. However, the medical evidence, that of Dr Lombard, who gave oral evidence, establishes that the appellant's injuries were also consistent with the mechanism proposed by the appellant. In other words, the "injuries" sustained by the complainant can be explained both by her evidence and by the evidence of the appellant, and therefore are quite neutral. 4. Her Honour went on to consider the evidence of the doctor and she then said this: "I note that the doctor after some considerable cross-examination accepted that in fact the injury could be entirely consistent with the defendant hitting her face on a blunt surface. But I must say I am confused to an extent then by the cross-examination which seemed to suggest that two objects or the two surfaces could cause an injury that occurred if you like in the one incident because the defendant has always maintained that in flicking his hip when the victim or alleged victim tried to pass him, that she fell backwards and hit her head, and clearly what he is asking the court to accept is that she hit her face on the wall of the bathroom, the tiled wall of the bathroom." Clearly the learned magistrate's first reference to "the defendant," the one I have just quoted, was a reference to the complainant in the Local Court. I have carefully read the evidence of the doctor. I would not describe the cross-examination as being lengthy and I have no confusion whatever as to what the evidence means. As I said, it is completely neutral. 1. A large part of the magistrate's reasoning process concerned the question of alcohol ingestion. Before I turn to that issue, some observations must be made. The taking of alcohol is fairly common in our community. The level of alcohol intake can be small, it can be moderate or it can be large. The taking of alcohol affects different people in different ways. Alcohol affects people differently and relevant factors as to the extent of the affectation of a person are the person's age, the person's size, the person's weight, the person's sex and the extent to which the person is a user of alcohol. A person who very rarely drinks alcohol is more likely to be affected by a small amount of alcohol than a person who is a regular consumer of the substance. 2. The next point to make is that persons describe the extent of another's affectation differently. Indeed, a person can describe his or her own affectation differently to others. A regular user of alcohol might say that the person who had only one or two alcoholic beverages was not affected at all. A confirmed teetotal drinker might believe that a person who had taken one or two alcoholic beverages was mildly or moderately intoxicated. A practised, seasoned or experienced drinker might consume alcohol without any obvious affectation, whilst the same amount of alcohol consumed by a person who usually did not take alcohol could render that person mildly or moderately or even very drunk. Indeed, the use of the words "intoxicated" and "drunk" is one which varies from person to person. If one arrives at a meal or a party or other function at which alcohol has been consumed by others and the new arriver is stone cold sober, the newly arrived might believe that others who had been drinking at the function were affected perhaps only mildly by alcohol, whereas those at the function where others were also drinking might perceive no affectation at all. 3. Those ladies who participated in the lunch at Catalina's who were called by the Crown had themselves partaken of alcohol. They did not perceive that the complainant was in any way intoxicated, but that does not exclude that the complainant and those witnesses may themselves have been mildly intoxicated. Even accepting mild intoxication, a stone cold sober person such as the appellant and such as his father might perceive mild intoxication, omit to add the word "mild", which is often the case, and then merely say that the person was intoxicated, intoxicated there meaning not drunk but merely affected. 4. Language concerning alcohol intake is variable and opinions about the level of a person's intoxication are usually idiosyncratic and lacking in objectivity. 5. At p 5 commencing at line 22, the magistrate said this: "the inference…that the Court is being asked to draw is that she [the complainant] must have remained at Catalina's from 7pm until later and that is the point at which she drank to the point of stupefaction if I am [to] accept that she was intoxicated". In that regard the magistrate was referring to the lack of any evidence from anybody who was with the complainant after 7pm prior to her arriving home at 8.30pm. However, it was not alleged by the appellant or by anybody on his behalf that the complainant had taken alcohol "to the point of stupefaction". That, in my respectful opinion, is hyperbole from the learned magistrate. At p 7 commencing at line 46 the magistrate said this: "The most significant surrounding circumstance that has been put in issue in this case or in dispute is the level of intoxication of the victim. Mr Crotty has maintained that not only was his wife extremely intoxicated, that she had had a skinful, that she was unsteady, slurred speech, glazed eyes, but that she was so intoxicated that in fact she was irrational, she caused an injury in effect to herself and she blamed him." It was not the evidence of the appellant nor was it his case that the complainant was irrational. Again that, in my view, was hyperbole by the magistrate. The magistrate's reasons then continued thus: "She had a history, as I understand it, of unreliability, sometimes being out until 5am, and in this context where she was injured he was concerned, he placed her on the bed, he still left her with his children. I do not accept his evidence. I do not accept the evidence that he has attempted to put before the court of her extreme level of intoxication. Now once that occurs, it seems to me that the whole edifice, if you like, of the defendant's defence cannot be maintained because in effect what he is asking the court to accept is that between 7 and 8 o'clock somehow she managed to get so intoxicated to the extent that he noted in his evidence and in his ERISP, that is a record of interview, to the extent that the father noticed that that was not something that was at all noted by the police. I reject his evidence entirely in relation to intoxication and therefore it does not cause me any difficulty at all to reject his evidence entirely and I accept Ms Crotty's evidence in relation to the injuries and the manner in which they were caused." Her Honour then formally announced that she found the offence proved beyond reasonable doubt. 1. The magistrate made no allowance for the fact that the evidence of the appellant concerning the level of the complainant's intoxication might itself have suffered from hyperbole. She made no allowance for the fact that he was or may have been upset about the complainant's coming home late and observing some signs of intoxication added that to his reprimands to his wife and that overtook his concern about her late arrival home. Furthermore, her Honour appears to have rejected the evidence of both the appellant and Mr Brendan Crotty about intoxication because it was "not something that was at all noted by the police". However, the police were not asked as to whether they noted it or not. Their evidence was completely silent on the issue. That cannot be used to reject the observations made by the appellant himself and more particularly by Mr Brendan Crotty, whose evidence appears on any reading of it to be entirely reliable and whose evidence in no way can otherwise be impugned. For example, the only impugning of that evidence is the assertion by the complainant that he never entered the home, but that is inconsistent with both his evidence and the evidence of the appellant. 2. With the utmost respect, it appears to me that the learned magistrate has not scrutinised the evidence of the complainant with the appropriate care as she was required to do, and has, instead, scrutinised the evidence of the appellant and his father in a completely impermissible fashion by comparing that to a lack of evidence from the police. I have considered the magistrate's reasons because it was necessary for me to read them in order to ascertain whether the magistrate made any particular findings based on the demeanour of any particular witness. She did not. I am therefore in just as good a position as the magistrate to make findings of fact. As I have earlier announced, when I scrutinise the evidence of the complainant it does not persuade me beyond reasonable doubt of its reliability to substantiate the allegation made by the complainant against the appellant. Equally, when I consider the evidence of the appellant and his father, it raises at least a reasonable possibility that the version presented by the defence is true and therefore that again raises a reasonable doubt as to the guilt of the accused. 3. Again another reason given by the Magistrate about the defence case is contained in a paragraph appearing on p 7 of the transcript of the reasons. It is this: "The witnesses' evidence was really only in very short compass. It seems to me that the significant aspect of it was to verify a level of intoxication and a level of hostility but I note that it was also, it seems to me, apparent that the purpose of the evidence was to explain that the children were of concern, had been checked on, and leaving them with a drunken mother was still consistent with their security and safety. I do not accept the evidence that has been given in relation to the level of intoxication and I do not accept that the evidence clearly between the father and his son is consistent in relation to the actions that were taken. That degree of inconsistency does cause me some concern and in scrutinising that evidence I have some concern about both Mr Crotty senior and the defendant's level of consistency and whether I in fact can rely on it." Her Honour appears to have believed that the evidence of the appellant and Mr Brendan Crotty about their perception of the complainant's level of intoxication was inconsistent with their permitting the two young boys to remain in the custody of the complainant. Kallen had been asleep at all material times. At the time that the appellant and his father left the house, Kai was asleep on their version of the evidence, although the complainant said he was not asleep but later fell asleep. He was safely tucked in bed on either version. The evidence was not that the complainant was a "habitual drunkard". It was not that she was regularly affected by alcohol but rather that on occasions she went out to socialise and took alcohol. On the evidence of the appellant, she was more affected by alcohol on this occasion than on other occasions. However, both boys were in bed and the evidence strongly suggests that both were asleep at the time that the appellant and his father left the house. One would expect the complainant herself to then retire to bed and there does not appear to have been any suggestion that, for example, the complainant herself might take to consuming alcohol on the following morning. Indeed, the evidence is that the appellant spent much time away from the family home travelling in the course of his work and no fear had been previously expressed about leaving the boys in the custody of their mother. It appears to me that the Magistrate has over stated the level of intoxication of the complainant alleged by the appellant and his father and that led her to the view that it was unsafe to leave the children in her custody, when they, meaning the appellant and his father, were of the view that it was safe to do so, the appellant's father being assured in that regard by his son. Furthermore, as the appellant conceded in his evidence, any attempt to move the children from the custody of the complainant on the evening in question would have caused much more anxiety, distress and upset than doing what they did, in leaving the children in bed anticipating that the appellant herself would shortly retire and be quite sober in the morning to look after them. 1. Any further reasons for judgment required? LEWER: Not on my part. HIS HONOUR: Ms Van Zyl? VAN ZYL: No, your Honour, none on my part, thank you. 1. HIS HONOUR: I have inquired of counsel for the appellant and the solicitor for the Crown whether any further reason for judgment is required and I am told that none is so required. For those reasons I set aside the conviction recorded and the sentence passed by the Downing Centre Local Court on 29 May 2015. 2. I am acutely aware of the damage done to our community by what is referred to in shorthand as "domestic violence." It currently consumes the media. However, the process in which I have been involved requires the application of well and long-established legal principles to the assessment of evidence. Included in the written submissions on behalf of the appellant is this observation by Mr Dhanji SC and his junior, which is well worth noting: "In Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086 at [48], in the context of upholding an unreasonable verdict ground of appeal, the court (French CJ, Hayne, Crennan, Kiefel and Bell JJ) emphasised that the "criminal standard of proof is a designedly exacting standard." The court reasoned that the intermediate appellate court erred in holding that it had been open to the trial judge to be satisfied of the reliability of a complainant's statements and to reason from that, despite the appellant's denials, to a conclusion that his guilt had been proved beyond reasonable doubt. Similar considerations apply to the present appeal. ********** 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: 18 January 2016