District Court New South Wales Medium Neutral Citation: R v Lumsden [2019] NSWDC 149 Hearing dates: 15 March 2019 Date of orders: 15 March 2019 Decision date: 15 March 2019 Jurisdiction: Criminal Before: Grant DCJ Decision: (1) The appeal is allowed. (2) Conviction quashed and all other orders of the Local Court set aside. (3) I find the appellant not guilty and dismiss the charges. Catchwords: CRIME — Appeal and review — Appeal from Local Court to District Court — By person convicted against conviction CRIME — Appeals — Appeal against conviction — Right to silence — Lack of cross-examination of complainant Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) Crimes Act 1900 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: Browne v Dunn (1893) 6 R. 67, H.L. Charara v Queen (2006) NSWCCA 244 Dyason v Butterworth [2015] NSWCA 52 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; (2003) 77 ALJR 989; (2003) 197 ALR 201 Category: Consequential orders (other than Costs) Parties: Wade Ian Risk Lumsden (Appellant) Regina (Respondent) Representation: Counsel: Mr B Royce (Appellant) Mrs N Walmsley (Respondent) File Number(s): 2018/00008886 Decision under appeal Court or tribunal: Local Court Jurisdiction: Windsor Date of Decision: 14 September 2018 Before: Magistrate Milovanovich File Number(s): 2018/00008886 Judgment HIS HONOUR: INTRODUCTION 1. Wade Ian Risk Lumsden appeals against convictions imposed at the Windsor Local Court on 14 September 2018. He was convicted of two counts, the first intentionally or recklessly destroy/damage property, domestic violence related, contrary to s 195(1)(a) of the Crimes Act to wit a blue striped handbag, the property of Zoe Lumsden and was placed on a s 9 bond for 12 months. 2. The second charge was one of common assault, domestic violence related, contrary to s 61 of the Crimes Act. He was placed on a s 9 bond for 12 months. It arose out of the same incident. The date of the offences was 18 July 2017. AN APPEAL AGAINST CONVICTION 1. The appeal is brought pursuant to s 18 Crimes (Appeal and Review) Act 2000. An appeal against conviction is a rehearing based on the transcript and exhibits in the Court below. 2. A s 18(1) appeal is not an appeal de novo: Charara v Queen (2006) NSWCCA 244 at [16]-[24], Dyason v Butterworth [2015] NSWCA 52 at [26]. The approach to be taken on a s 18(1) rehearing is analogous to that taken to a civil appeal under s 75A of the Supreme Court Act as explained in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, where the judge is to form his or her judgment of the facts recognising the advantage enjoyed by the magistrate who heard and saw the witnesses in the Lower Court: Dyason at [27]. 3. The powers of the District Court on a s 18(1) rehearing are exercisable where the appellant demonstrates that the order, the subject of the appeal, is the result of a legal, factual or discretionary error in which event the appellant court can substitute its own decision based on the facts and law as they then stand: Dyason at [28]. THE FACTS THE PROSECUTION CASE 1. A short summary of the evidence of Zoe Lumsden is as follows: 2. They had separated and have a child of their union. It would appear that there have been ongoing issues with her use of a phone and their separation generally. They had an argument in the car after a scout leadership meeting. They returned to the home. The appellant proceeded to get a drink from the kitchen. She put her phone in her handbag in her room so the appellant could not get access to it. The appellant came into the room. She grabbed her handbag and proceeded to the kitchen holding onto it so that he could not take possession of the phone. They ended up in an altercation in the kitchen. She was leaning on the fridge with her arm wrapped around the bag to stop him from taking possession of the phone which he had done on previous occasions. He grabbed the bag from the handle which started to rip. The bag went slowly down her arm. She ended up beside the fridge, on the floor without the handbag. He had taken possession of the bag and then threw it back at her. 3. She said that bruising came up over a couple of days later and she received a scratch on her leg when she was going down onto the fridge. She took photographs of the alleged injuries. There were two photographs exhibited at the hearing. They are exhibit 2. They are of poor quality and I have great difficulty in discerning any bruising or scratch. There was no evidence before the Local Court as to when the photographs were taken. 4. Mr Royce who appeared for the appellant in the Local Court complied with the rule in Browne v Dunn, the complainant denied the puttage. THE APPELLANT'S EVIDENCE 1. The appellant gave evidence of his good character. This was uncontested. The appellant said he held the bag out in front of her taunting her. "She snatched the bag off me and the strap broke". He thought he may have been taunting her about the phone. 2. In cross-examination, he confirmed that he held the bag out taunting her about the phone but could not explain why he was taunting her about the phone. Later in cross-examination, he said he wanted to taunt her because he was upset. He denied wanting to go through her phone and he denied the version given by the complainant. THE MAGISTRATE'S DECISION 1. The magistrate was faced with a single witness with no independent supportive evidence. He was required to exercise caution because the prosecution case depended upon the acceptance of the reliability of the evidence of the complainant. He needed to be satisfied beyond reasonable doubt that the complainant was both an honest and accurate witness. He was required to examine the evidence of the complainant very carefully to satisfy himself that he could safely act upon that evidence to the high standard required in a criminal prosecution. 2. The magistrate was required to give himself a good character direction in relation to the appellant in that, as a person of good character, it is unlikely that he has committed the offences and more likely than not, when he gave his evidence, he was telling the truth. To convict the appellant, the magistrate would have to disbelieve his evidence beyond reasonable doubt. 3. If there was a reasonable possibility of events occurring as described by the appellant, the magistrate could not be satisfied beyond reasonable doubt. To determine the guilt of the appellant, the magistrate embarked upon illogical, speculative, reverse reasoning that in my view led him into error. The magistrate relied upon the following matters: 1. The complaint was made on 21 September 2017, some two months after the alleged offences in a statement to the police. 2. The complainant was not cross-examined about any inconsistency with that statement. 3. The magistrate inferred, in my view wrongly, that because she had not been cross-examined about any inconsistency, the evidence she gave must be consistent with the statement, therefore supporting her credibility. 1. Such reasoning has a number of flaws. Firstly, no one knows the contents of the statement. It may have contained inconsistencies that were not acted upon. The inference that the magistrate drew is entirely speculative and one incapable of being drawn. 2. Secondly, if a person makes a self-serving statement, or any statement to the police and gives evidence in accordance with that self-serving statement, the existence of the self-serving statement, although it is a prior consistent statement, does not add to the credibility of a witness. 3. The magistrate then went on to say the following: "The first time he gives a version is in court in the witness box today. He was offered an opportunity to conduct an electronic record of interview which he declined and that is no criticism of the defendant because he is entitled not to participate in a record of interview". 1. The magistrate correctly set out the law in that the refusal to partake in a record of interview cannot be used against the defendant. It cannot be used as amounting to an admission of guilt. The magistrate could not use that fact to fill in any gaps that existed in the prosecution case. 2. Although the magistrate had correctly stated the law, he went on to say that the failure to participate in a record of interview: "becomes relevant when the Court is assessing how accurate memories are in relation to an account that is given within two months of the alleged incident and an account that is given in the witness box 14 months after the incident". 1. The reasoning expounded by the magistrate does penalise an accused who has exercised his right to silence. The magistrate's reasoning would lead to the position that if a defendant engaged in a record of interview and it was consistent with his evidence, then a witness could be looked upon as a more credible witness. Such a finding would erode the right to silence and may impugn upon the onus of proof in shifting the onus upon the appellant to demonstrate his credibility by participating in a record of interview. 2. The magistrate made the correct observation that "the two versions cannot sit side by side and the Court has to try and determine where the truth really lies". 3. However, he then engaged in impermissible reasoning to determine the issue, as I have set out in this judgment. I have taken into account that the magistrate had the opportunity to see and hear the witnesses but I am to form a judgment of the facts presented in the Local Court and I am to form that judgment as a result of the error occasioned by the magistrate. The onus was, at all times, upon the prosecution. 4. The appellant gave sworn evidence and was of good character. He had the presumption of innocence. The appellant is entitled by law to the benefit of any reasonable doubt that is left in the fact-finder's mind. As I have said before, to find the appellant guilty, the magistrate would have to disbelieve his account beyond reasonable doubt. I, for my part, cannot be so persuaded. If there was a reasonable possibility of these events occurring as set out in the evidence of the appellant, I could not be satisfied beyond reasonable doubt which is the highest standard of proof known to the law. ORDERS 1. The orders are as follows: 1. The appeal is allowed. 2. I quash the conviction and set aside all orders of the Local Court. 3. I find the appellant not guilty and dismiss the charges. ********** 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: 03 May 2019