CITATION:	Fernando v Firth [2017] NTSC 67

PARTIES:	FERNANDO, James Darren

	v

	FIRTH, Justin Anthony

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO:	JA 22 of 2016 (21563423)

DELIVERED:	25 August 2017

HEARING DATES:	7 October 2016

JUDGMENT OF:	BARR J

APPEAL FROM:	COURT OF SUMMARY JURISDICTION

CATCHWORDS:

CRIMINAL LAW – JUSTICES APPEAL – Appellant found guilty of DVO contravention – prosecution alleged a conditional threat to kill as being ‘intimidating conduct’ in breach of DVO – magistrate not satisfied beyond reasonable doubt as to particular threat alleged by prosecution – appellant found guilty on basis of his admission of a materially different and lesser threat – complainant not examined or cross-examined about the lesser threat – no evidence that complainant had reasonable apprehension of violence to her person as a result of lesser threat – no subjective evidence of intimidation – conditions of DVO to be interpreted in accordance with statutory meanings in Domestic and Family Violence Act – prosecution failed to prove breach of DVO  beyond reasonable doubt – finding of guilt set aside – conviction quashed.  

CRIMINAL LAW – JUSTICES APPEAL – Appellant found guilty of aggravated assault – appellant had unlawfully taken complainant’s personal property – complainant took hold of appellant’s arm to retrieve property and/or prevent appellant leaving with her property – appellant gripped or squeezed complainant’s wrist in response – appellant applied force to maintain unlawful possession of complainant’s property – the fact that complainant took hold of appellant’s arm did not amount to consent on her part to application of force – on appeal held evidence sufficient to exclude defensive conduct beyond reasonable doubt – appellant did not believe his conduct was necessary to defend himself – appellant’s conduct not a reasonable response in the circumstances as he reasonably perceived them – finding of guilt affirmed – appeal dismissed.

Criminal Code Act (NT) s 1, s 29(2)(a)(i), s 29(2)(b), s 187(a), s 411(1)
Domestic and Family Violence Act s 6(1)(b)(i), s 6(1)(c) 
Evidence (National Uniform Legislation) Act s 108(3)(a) 
Justices Act (NT) s 163

Fox v Percy (2003) 214 CLR 118; Libke v The Queen (2007) 230 CLR 559; Burkhart v Bradley [2013] NTCA 5, 33 NTLR 79, followed 

McMaster v The Queen (1994) 4 NTLR 92; Davis v Bennett (2003) 13 NTLR 1, referred to 

REPRESENTATION:

Counsel:
	Appellant:	J Hardy
	Respondent:	S Ledek

Solicitors:
	Appellant:	North Australian Aboriginal Justice Agency 
	Respondent:	Office of the Director of Public Prosecutions 

Judgment category classification:	B
Judgment ID Number:	Bar1710
Number of pages:	35

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Fernando v Firth [2017] NTSC 67
No. JA 22 of 2016 (21563423)

	BETWEEN:

	JAMES DARREN FERNANDO
	Appellant

	AND:

	JUSTIN ANTHONY FIRTH
	Respondent

CORAM:	BARR J

REASONS FOR JUDGMENT

(Delivered 25 August 2017)

[1]	The appellant appeals his convictions by the Court of Summary Jurisdiction on one charge on complaint of contravention of a domestic violence order (count 1) and one charge on information of aggravated unlawful assault (count 2). 
[2]	Count 1 charged that the appellant, a person against whom a domestic violence order was in force, engaged in conduct that resulted in a contravention of that domestic violence order. 
[3]	Count 2 charged the appellant with unlawful assault, with the circumstances of aggravation that the assault was male-on-female, and that the victim suffered harm. 
[4]	Both offences were alleged to have been committed on 24 December 2015. The appellant pleaded not guilty to both charges. The magistrate made findings of guilt after a contested hearing on 23 March 2016. 
The hearing before the magistrate 
[5]	The alleged events of 24 December 2015 occurred against the background of a court order made by consent pursuant to the Domestic and Family Violence Act under which the appellant was restrained from causing harm or attempting or threatening to cause harm, or intimidating, harassing or verbally abusing three named ‘protected persons’, one of whom was the complainant. The order was made on 17 February 2015 and was expressed to continue in force up to and including 16 February 2016. 
[6]	In her opening, the prosecutor particularized the appellant’s conduct constituting the alleged contravention of the domestic violence order (count 1) as follows:
I have been asked to particularise the charge in relation to the breach domestic violence order charge. It is effectively a clause, but he has said words that were intimidating or harassing or verbally abusing the protected person, which is condition 11. … in terms of how that fits with the other conduct, we say that there is physical contact which constitutes the assault, and then there is damage to her property. But there are words said to her which constitute the breach. 
[7]	The prosecutor did not particularise the actual words allegedly spoken. The reference to “condition 11” was to the paragraph numbered 11 of the order, under which the appellant was restrained from directly or indirectly “intimidating or harassing or verbally abusing” the protected persons. The prosecutor confined the prosecution case to a breach of condition 11, and not a breach of condition 9, under which the appellant had been restrained from threatening to cause harm. Although the prosecutor referred in her opening to “words that were intimidating or harassing or verbally abusing the protected person”, the prosecution (through the principal witness, the complainant) relied on an alleged threat of violence made by the appellant as ‘intimidating’ conduct. 
[8]	The concept of ‘intimidation of a person’ is defined in the Domestic and Family Violence Act to mean, inter alia, “any conduct that causes a reasonable apprehension of violence to the person” or “any conduct that has the effect of unreasonably controlling the person”. However, because the prosecutor confined the case on count 1 to intimidating words spoken by the appellant, the case on count 1 did not extend to or include any other conduct (for example, controlling conduct) on the part of the appellant. 
[9]	As a result of prosecutor’s elections, the prosecution case on count 1 was that, by his words, the appellant ‘intimidated’ the victim, that is, caused the victim to have a reasonable apprehension of violence to her person, thereby contravening the domestic violence order. I discuss this further in [14] below. 
[10]	The prosecution case depended very substantially on the evidence of the complainant. She said that she had known the appellant from the age of 16 years, and had been in a relationship with him for about 15 to 16 years. They had four children and lived in the Tiwi Islands for most of their relationship. The complainant said that their relationship had ended three weeks before the events of 24 December 2015. There had been an argument between them, after which the complainant’s father had sent her to stay at her cousin’s house in Moulden, a suburb of Palmerston. 
[11]	On 24 December 2015, the appellant came to the house of the complainant’s cousin. He had not been invited. The complainant gave evidence in which she described the events of that day, as follows: 
… did he say anything when he arrived?---Said to me that, “Are you going out to cheat?” Cheat with another guy, you know.
And, at that time, were you in a relationship with him, or had the relationship ended?---Ended, three weeks ago before I came. 
And when you said that he cut up your ID [a reference to earlier evidence], can you explain when that happened and how that happened?---It happened at my cousin’s house at Moulden. Grabbed my wrist, went to my bag and grabbed the ID. I tried to grab it, but he squeezed my wrist. 
And when he squeezed your wrist, how did he do that?---Grabbed my wrist, and I tried to ask him back in a good way, but grabbed my wrist and I just let go.
HER HONOUR: So, the witness is indicating her left wrist being grabbed around with the right hand – her right hand around her wrist, the hand closed around the wrist.
Did he do that gently or hard?---Hard, took my skin off. 
When you say you took your skin off, can you describe exactly what it did?
HER HONOUR: She’s showing a twisting motion.
And when he did that, how did you feel?---Bad.  
What you mean by that?---I felt horrible.
Are you talking about physically feeling horrible or feeling, how you felt, feelings?---No good.
And why was that?---Because I wanted to enjoy myself for Christmas and New Years before I go back home, that was my first time.
And … in relation to your arm, how did it feel?---Pain. Had couple of skin came off.
And how long did you feel pain for?--- Well, one or two days.
When this was happening, was he saying anything to you?---Yeah.
What was he saying?---It - I’m not going to - he don’t want me to find a new boyfriend. Otherwise he kill me. Murder me. I have to tell the truth today. I can’t lie.
And was he saying that in a friendly way or in a not friendly way? Was it friendly or not friendly?---Not friendly.
Okay?---In a mean way.
And when he said those things to you, when he said that thing to you, how did you feel?---Felt bad.
And how did you feel bad?---It hurts me.
When you say it hurts you, could you explain to the magistrate?---When you say those things to me, I feel no good, horrible. I don’t know what else to say it.
You said something about your phone. Could you tell the magistrate ---?---Threw my phone.
Yes?---Over my cousin’s fence, and I had to walk around and grab the phone, then call the police.
And when he threw the phone, what happened to it?---Smashed, half of it was smashed. 
Did the phone still work at all?---Yeah, it worked, but it had crack on it. … the screen was scratched.
And when he threw the phone, was he saying anything or ---?---No, he walked to his mother’s house.
And you mentioned that you called the police. Why did you call the police? ---Because I didn’t want him to do any of this to me.  
And what happened after that?---I called the police and the police came and arrest him. They took me to Palmerston Police Station to make a statement. 
[12]	The complainant identified in further evidence the injury or injuries to her wrist from photographs taken by police on 24 December 2015. The attending police member described the injury as “some kind of scratch or scratches to her left forearm”, which were “very hard to actually see” against the complainant’s dark skin. 
[13]	The complainant’s police statement, referred to in the passage of evidence extracted in [11] above, was in the form of a statutory declaration made 24 December 2015, and which was ultimately admitted into evidence. I set out below the material content of that document: 
1.	I am 33 years old and was in a relationship with James Fernando since I was 16 years old. We have 2 children together [names redacted] aged 10 years and 6 years and we broke up 3 weeks ago because he said he found another woman.
2.	I have a DVO with James because he has hurt me before and now he is not allowed to hurt me, damage my property, intimidate me or verbally abuse me.
3.	I have been in Darwin for a few weeks to be with my family for Christmas and to stay away from James because he had an affair with another woman. A week later James came to find me.
4.	James has been trying to win me back but I don’t want any more to do with him, and we have been arguing about it and he won’t leave me alone. He even tells me ‘if you find another man I’ll murder the pair of you’. 
5.	Today the 24th December 2015 I was at my cousin’s house in Moulden and James came over and went into my bag and took my ID card out of my wallet. 
6.	I was trying to take it off him and telling him to give it back, and he grabbed me by the arm and was holding on very tight, and I felt pain in my arm.
7.	He was just yelling ‘I’m cutting it up so you can’t go out, they gonna fuck you out there’, and he then cut it up into little pieces with some scissors that he always carries with him.
8.	James then grabbed my phone and threw it over the fence.
9.	I went and grabbed my phone, the screen was smashed because of James throwing it, and started walking to my auntie’s place down the road and called the police and James was following me. 
10.	The police arrived soon after and I told my story, and they took me to the Palmerston Police station to give this statement. 
[14]	Although the prosecutor did not particularise the words alleged to have been spoken in relation to count 1, the hearing was conducted by both prosecution and defence counsel on the basis that it was alleged the appellant had intimidated the complainant on 24 December 2015 by making a threat to kill in the words described by the complainant in her evidence-in-chief, cross-examination and police statement. As a result, it was a significant issue at trial as to whether the appellant threatened to kill the complainant in the course of the events of 24 December 2015 described by the complainant in her evidence, or on some earlier occasion or occasions (if indeed at all). 
[15]	Counsel for the appellant cross-examined the complainant to the effect that the threat to kill was not made on 24 December 2015. The basis for the cross-examination was the complainant’s description of the threat to kill contained in par 4 of her statutory declaration, reproduced in [13] above: 
… He even tells me ‘if you find another man I’ll murder the pair of you’.
[16]	On defence counsel’s suggested interpretation, the content of par 4 was background to the events of 24 December 2015, not part of the complainant’s narrative of the events of 24 December 2015 which (again on defence counsel’s suggested interpretation) was contained in par 5 and subsequent paragraphs of her statutory declaration. 
[17]	The cross-examination of the complainant on this issue was as follows (with reference to her police statement): 
And just looking at that statement, can you see par 7? Is it right that that’s all that James said you on the day?---for my ID, wanted to - - -
But he didn’t say then, did he, that he was going to kill you that day?---Yeah, he always says that, he knows. 
I am not talking about what he always says. I am talking about what he said to you that day. He didn’t say it to you that day, did he?---He did.
But you didn’t tell the police that in your - - - ?---I want to forgive him.
You didn’t tell police that he said that to you that day, did you?---I told the police. 
But you’d agree that it’s not in your statement that he said that to you that day, is it?---I tell the police everything.
Did you read that statement before you signed it that day?---Yeah.
And you told them that … they hadn’t left anything out?---No, it’s all there.
So you didn’t tell him, or rather he didn’t tell you he was going to kill you that day then, did he?---Yeah he said that.
I’ll move on?---[witness continues]‘If you find another man I will kill you and I will kill the man that you’re with’.
But that’s not in your statement, is it?---Yes, it’s not. 
[18]	The cross-examination was possibly unfair to the witness. Defence counsel was seeking to impugn her credit based on an assumed inconsistency between her evidence in court and her police statement. However, that inconsistency was not clear and direct. It relied on a combination of two things: 
•	the use of the present tense of the verb ‘to tell’ in the sentence “He even tells me ‘if you find another man I’ll murder the pair of you’”, as suggesting a continuing course of behaviour: a statement repeated, but one not necessarily said at the time of unpleasantness between the appellant and the complainant on 24 December 2015; and 
•	the words at the start of the next paragraph “Today the 24th December 2015 …” as suggesting that the content of the preceding paragraphs (including the continuing course of threatening behaviour) had occurred before 24 December 2015, but not actually on 24 December 2015. 
[19]	Given (1) the circumstances in which the complainant made her police statement; (2) her level of English expression (as revealed in her evidence); and (3) the possibility for misinterpretation of her narrative by the police officer who prepared the statement, the inconsistency contention relied on by defence counsel was based on grammatical subtleties and the manner in which the police officer structured or paragraphed the complainant’s statement. 
[20]	However, it can be seen that, notwithstanding any possible unfairness, the complainant insisted in cross-examination that the threat to kill was made on 24 December 2015, and that she told that to the police. However, she may well have conceded (by her words “Yes, it’s not) that her statement did not reflect the fact that she told the police that the appellant had made the threat to kill on 24 December 2015. 
[21]	In re-examination of the complainant, the prosecutor did not attempt to have the witness explain the temporal ambiguity in her police statement (exploited by defence counsel) and clarify what she meant by her statement starting, “He even tells me ‘if you find another man …” etc. Rather, the prosecutor unhelpfully led evidence as to what the complainant had told police (which was not in issue, given that it was contained in the witness’s statutory declaration), without any reference to when the alleged threat had been made by the appellant: 
James’ lawyer has asked you about whether you told the police about James having said, “If you find another man, I’ll murder you”. You did tell the police that, didn’t you?---Yeah. 
[22]	In relation to the assault charge, counsel for the appellant cross-examined the complainant to seek a concession from her that she grabbed the appellant’s arm first, in order to raise a defence of self-defence: 
Now, when he said that he wanted to stay, you got angry, didn’t you?---Yeah, I got angry.
And it was then that he took this ID card from you, didn’t he?---Yeah. 
…
… Because you were angry, didn’t you go and try to grab the card from him?---Yeah, no I asked him, ‘Give it back.’
Now, when you were doing that, you grabbed his arm that was holding the card, correct?---I said, ‘Give it back.’ I tried asking him in a good way, but he twist my arm. 
But you grabbed his arm first, correct?---He went through my bag.
So you grabbed his arm?---Yes
And it’s then that he grabbed your arm to pull you off, correct?---Yeah, and he ripped out scissors and cut it up.
Now, it’s not the case that he cut it up, is it?---I can’t – I remember he grabbed something, or squeezed it.
But you’re not sure if he cut it up?---He did, need to tell the truth today.
You said before, just now, that he squeezed it, correct?---He squeezed it and he reached for his pocket. I don’t know how he done it. My key card was – ID was ruined.
I’m saying to you, tell me if you agree or disagree, that he didn’t cut it up, did he?---He cut my key card, my ID.
Now, when you grabbed his arm and then he grabbed yours, you didn’t get the ID straight away, did you? And so you kept grabbing at him, didn’t you?---No. 
You grabbed his shirt?---Yeah, grabbed his shirt.
Did you grab his shirt?---Yeah.
And you ripped his shirt, correct?---Yeah.
You did rip his shirt?---And he was trying to push you away while you were doing that, correct?---Yeah. 
And it’s during that scuffle that you got scratched, correct?---No, he grabbed my hand, I remember. I know.
So you think it happened when he grabbed your hand?---Yeah. 
[23]	I now turn to consider the evidence in the defence case.
The defence case 
[24]	The appellant gave evidence in which he made a number of significant admissions. He admitted that the complainant had told him that she did not want him to be at her cousin’s residence. He said that he argued with the complainant, in the course of which he tried to grab her ID and take off; however, she saw him grab it and she grabbed him by the hand in an attempt to retrieve it. The appellant’s evidence-in-chief was as follows:
So she told you that she didn’t want you there?---Yeah. 
And what happened then?---We had a bit of an argument and I tried to grab her ID and take off, but she seen me grab it and she grabbed me by the hand.
I’ll just stop you there. What was said in the argument?---It was an argument about she wanted to go out to a nightclub after she finished drinking, and I told her, “You can go out and enjoy yourself”, but she just didn’t want me around.
And you grabbed her ID?---Yeah I grabbed her ID and wanted to walk out with it.
Why did you do that?---Because I didn’t want her to go out and she seen me grab the ID and she grabbed me by my wrist, and I tried to grab her by the wrist to get her off me. And we was just wrestling and arguing over the ID.
So this is important, she grabbed your wrist?---Yeah.
And you grabbed her wrist, you say, to get off you?---Yep. 
And when you were wrestling, what was happening?---We were wrestling and then I didn’t let go of the ID, so she grabbed me by the shirt and just started ripping my shirt. “Give me back my ID”, that’s all she was saying. I was telling her, “Settle down, I’ll give it to you if you settle down.” She didn’t want to settle down, she just kept on off her head.
And what happened then?--- And, um, I gave her back the ID, and I got the phone and she said, “I want my phone back”, and I threw the phone to her… I meant for her to catch it. 
[25]	The appellant said that he did not know how the complainant came to be scratched, but speculated it was “probably when she grabbed my hand and when I grabbed her hand and we was just squeezing each other’s hand and trying to rip the ID out of my hand”. 
[26]	In cross-examination, the appellant suggested that his conduct was out of concern for his daughter: 
Yeah, I got – so, I got a little bit angry with her [the complainant] because that was my – she was going to go out with – that was my – she was going to go out with – let  me say it in another way, I’m trying to think of a word to say. That mob were living in the house were all drinkers, and they were all going to go out that night, and my little girl was there with nobody to look after her. So I was going to be there to look after my daughter while all of those mob was in that house was going to go out.
[27]	The appellant’s explanation for his controlling behaviour was rejected by the magistrate as unbelievable. Moreover, the explanation was inconsistent with his earlier evidence in which he claimed that he said to the complainant, “You can go out and enjoy yourself”. Further, as her Honour noted, if the appellant’s concern for the child had been as he claimed, he could simply have looked after the child while the mother was out. Instead, he tried to take the complainant’s ID card to prevent her going out, or to prevent her entering licensed premises if she did go out. 
[28]	The appellant was asked by the prosecutor in cross-examination if he thought it was the “right thing to do” to take the complainant’s ID card to stop her going out, to which he replied:
No it’s the wrong thing to do, ’cos I should have just let my partner go and enjoy herself for the Christmas, but we didn’t get to sort things out. 
[29]	The appellant denied that he cut up the ID card, as alleged by the complainant. He claimed that he returned it. There was no hard evidence (or photographs) of a damaged ID card found at the premises by police, or produced by the complainant. 
[30]	Although the appellant denied that he made any threat to kill the complainant, he admitted to making a conditional threat to assault the complainant: 
Do you remember what you said to her that day during the argument?---Nah, I didn’t – I didn’t say I’m going to kill her. I just said, “I will punch you if you come back near me.” I just said, “Stay away from me.” But she didn’t want to stay away from me. 
The magistrate’s decision 
[31]	The magistrate was ultimately not satisfied beyond a reasonable doubt that the appellant threatened to kill the complainant on 24 December 2015: 
… In relation to the domestic violence order, it is … particularised as words said to her by the defendant in breach of the domestic violence order. That is, they were intimidatory words. She says in her evidence-in-chief that he threatens to kill her and any person she might get together with.
And it’s clear from the statement to the police that she says something of that nature, although … it is not clear in that statement that she meant that he said it on the night. She explains that she sometimes has trouble remembering things, and she explains that – she could not explain why it had not been recorded in her statement as words that he used on that day. And I cannot be satisfied beyond reasonable doubt that he in fact did use those words on that day.
[32]	However, her Honour then referred to the appellant’s evidence (extracted in [30] above) that he had threatened to punch the complainant, and proceeded to find him guilty of the offence charged as count 1 on the basis of that admission. Her Honour stated that she was satisfied beyond reasonable doubt that the words were said.
[33]	The magistrate also found the appellant guilty of the offence charged as count 2, with the proven circumstance of aggravation that the assault was male-on-female. However, her Honour was not satisfied beyond reasonable doubt that the complainant had suffered harm as a result of the assault. That finding should be understood in the context that the harm alleged by the prosecution was the scratch or scratches to the complainant’s arm referred to in [12] above. The magistrate said: “I cannot be satisfied beyond a reasonable doubt [that] that scratch on her arm arose out of his grip on her wrist”. 
[34]	Her Honour made specific findings in relation to count 2 that (1) there had been an argument between the appellant and the complainant about the complainant going out to nightclubs; (2) the appellant had removed the complainant’s ID from her, and (3) a struggle had then ensued for the ID. Her Honour acknowledged that the complainant had “actually been physical with the [appellant] in her attempt to retrieve her ID from him”, and that she had pulled at his arm and also pulled at his shirt, ripping it in an attempt to retrieve her ID card. However, in finding the unlawful assault proven beyond reasonable doubt, the magistrate clearly accepted the complainant’s evidence that the appellant had assaulted her by grabbing her arm and/or gripping her wrist. 
[35]	The magistrate analysed the evidence which had raised defensive conduct, as follows: 
Certainly, defensive conduct has been raised in the defence evidence. And he says that he grabbed her arm only to stop her from attacking him. He also says that it was a reasonable response because she was – I cannot remember exactly the word – but basically saying she was going crazy. He accepted that, by taking her ID, he had done the wrong thing. Given the defendant’s size and given the size of [the complainant], given the situation where he had taken her ID because he was angry with her about [her] going out, I do not accept that he was at any stage in fear [for] his own safety. I do not accept that he was acting in defence of himself. His explanation is unbelievable. 
[36]	The magistrate’s findings amounted to an expression of her Honour’s satisfaction that the appellant’s conduct in grabbing the complainant’s arm and/or gripping her wrist was not to defend himself. Further the magistrate did not consider that his conduct was a reasonable response in the circumstances. Those findings did not fully determine the issue of self-defence in accordance with s 29(2) Criminal Code. However, I return to consider the issue of defensive conduct at [65] below. 
Grounds of appeal 
[37]	The notice of appeal was amended on the hearing of the appeal so as to raise only two grounds, as follows: 
1.	The learned magistrate erred by admitting into evidence the statutory declaration of the complainant.
2.	The decision of the learned magistrate [on both counts 1 and 2] was unsafe and unsatisfactory.
Admission of the statutory declaration 
[38]	A considerable amount of time was spent on the hearing of the appeal in relation to the first ground of appeal. The appellant argued that the ultimate findings of the magistrate were “tainted by the erroneous admission of hearsay evidence”. The appellant’s primary contention was that the prosecution had failed to mount an argument based on a specific exception to the hearsay rule for admission of the document into evidence. 
[39]	It may be accepted that the prosecutor’s arguments in the court below were inadequate. However, I have to decide whether the magistrate erred in law in admitting the statutory declaration into evidence. I note that s 60(1) Evidence (National Uniform Legislation) Act provides that the hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact. It was on that basis that defence counsel in the court below was able to cross examine the complainant on the content of her (suggested) prior inconsistent statement. Further, s 108(3) Evidence (National Uniform Legislation) Act allows evidence of a prior consistent statement to be adduced with leave of the court where evidence of a prior inconsistent statement has been admitted. 
[40]	I have already referred to cross-examination of the complainant by defence counsel to the effect that she had not told the police that the threat to kill had been made in the course of the events which she said had taken place on 24 December. As is apparent from the evidence of the complainant extracted in [17] above, the issue was  not whether the threat had been made at some time, but whether the making of the threat could be evidence of the DVO contravention which the prosecution alleged had occurred on 24 December 2016.  
[41]	At the end of the cross-examination, the prosecutor expressed concern about the way in which the complainant had been cross-examined on her statutory declaration. The prosecutor did not articulate her concerns but indicated that she would, in re-examination, ask the witness to read portions of her statement. The magistrate then asked the prosecutor, “You call for it to be tendered?”, to which the prosecutor responded by tendering the document. Defence counsel objected. The magistrate overruled the objection, on the basis simply that defence counsel had cross-examined the complainant on the statement, “put it to her”, and hence the statement could go into evidence. 
[42]	Her Honour appears to have dealt with the issue in a robust way, and did not descend into the intricacies of the Evidence (National Uniform Legislation) Act, s 60, s 103(1) and s 108(3) respectively, in relation to evidence relevant for a non-hearsay purpose; cross-examination as to credibility; or re-establishing credibility by evidence of a prior consistent statement. Her Honour also did not accede to an application by defence counsel that the use to be made of the evidence be limited, pursuant to s 136 Evidence (National Uniform Legislation) Act. 
[43]	In my opinion, however, the magistrate’s decision to allow evidence of the statutory declaration in re-examination was correct and in accordance with s 108(3)(a) Evidence (National Uniform Legislation) Act. Although the complainant’s final answer in cross-examination on this issue was somewhat equivocal (“Yes, it’s not), it was arguably a concession that the threat - about which she had given evidence - did not feature in her statement as something said by the appellant on the same day as the other conduct alleged by the prosecution. The prosecutor was entitled to adduce evidence to re-establish the complainant’s credibility by reference to the ambiguity in the statement, to ground a submission that there was no real inconsistency between the complainant’s evidence and her prior statement. At least the prosecutor might have led evidence from the complainant to confirm that the appellant had made the death threat on 24 December 2015, as the complainant had insisted in cross-examination; that she had informed police accordingly; and that she had not appreciated or understood, when reading and signing her statement, that the use of the present tense (“tells”) in par 4 and the introduction to par 5 made it appear that the death threat was not made or repeated on 24 December 2015. I am not intending to indicate that the credibility of the complainant would necessarily have been re-established in that way. It may or may not have been. However, the prosecutor was entitled to put the complainant’s police statement in evidence so that the magistrate could understand the nuances in the content and structure of the document. 
[44]	Counsel for the appellant complained of two further matters: (1) that the magistrate had allowed into evidence the whole of the statutory declaration, and not only the parts on which the complainant had been cross-examined; and (2) that the magistrate had not considered limiting the use of the evidence contained in the statutory declaration, pursuant to s 136 Evidence (National Uniform Legislation) Act. As to the first of those complaints, counsel could not point to any prejudice or disadvantage suffered by the appellant on account of the whole of the statutory declaration being allowed into evidence. The statement contained only 13 short paragraphs. The first three or four those paragraphs were relevant to put the matters, the subject of cross-examination, into context. The last four paragraphs were irrelevant to any issue on appeal or were formal matters. As to the second of the appellant’s further complaints, it appears that the magistrate did not expressly consider s 136. However, on appeal, the appellant was unable to identify misuse of any evidence to the prejudice of the appellant. I have been unable to identify any “danger”, as that word is used s 136 of the Act, such as would trigger the operation of the section. 
[45]	Even if, contrary to my conclusion in [42] above, the magistrate erred in allowing the statutory declaration to be tendered in re-examination, her Honour referred to and relied on the lack of clarity in the statutory declaration to determine (in favour of the appellant) that she was not satisfied beyond reasonable doubt that the alleged threat had been made on 24 December 2015. 
[46]	Given that particular outcome in favour of the appellant, and her Honour’s reasons, I reject the appellant’s submission that the ultimate findings of the magistrate were “tainted by the erroneous admission of hearsay evidence”. 
[47]	Ground 1 must fail. 
[48]	I now turn to consider the ‘unsafe and unsatisfactory’ ground as it has been argued in relation to the guilty findings on each of counts 1 and 2. I note that the correct statutory test as to whether a jury’s guilty verdict should be set aside is whether the verdict “is unreasonable or cannot be supported having regard to the evidence …”. The correct statutory test as to whether “the judgment of the court of trial should be set aside” is that there has been “the wrong decision on any question of law” or that, on any ground, there has been “a miscarriage of justice”. 
Appeal against guilty finding – count 1 
[49]	In my opinion, having decided that she was not satisfied beyond reasonable doubt that the appellant had threatened the complainant in the manner alleged, the magistrate erred in law in convicting him on count 1 on the basis of his evidence extracted in [30] above. The particular threat alleged and admitted by the appellant (“the admitted threat”) was not the prosecution case. The words differed significantly from the threat relied upon by the prosecution. Although the appellant was cross-examined as to the admitted threat, the prosecutor in her closing did not seek to rely on the appellant’s evidence as an admission of the threat alleged, or to ‘substitute’ the admitted threat for the threat alleged and relied on by the prosecution. In my opinion, the magistrate did not accord procedural fairness to the appellant in that her Honour went outside the prosecution case in convicting him of the offence charged as count 1. 
[50]	Further, the complainant did not give any evidence in the relation to the admitted threat. She was not cross-examined about it. There was no evidence from her that such a threat had been made, let alone how it had affected her. The restraints contained in the domestic violence order, referred to in [5] above, were to be construed in accordance with the interpretation provisions of the Domestic and Family Violence Act. I refer to my observations in [8] and [9] above. There was no evidence that the complainant had a “reasonable apprehension of violence to [her] person” as a result of the admitted threat, so as to constitute “intimidation of the person” within the meaning of s 6 of the Domestic and Family Violence Act. The prosecution failed to prove the case that the appellant had engaged in conduct that resulted in a contravention of condition 11 of the domestic violence order. 
[51]	Moreover, given that her Honour was of the view that the evidence of the appellant was unreliable in a number of respects she specifically referred to, and that she either discounted it or rejected it, it is unclear as to why, in the circumstances, her Honour accepted as true, beyond reasonable doubt, that the accused had made the ‘conditional threat’ he claimed. 
[52]	An appeal under s 163 Justices Act is an appeal by way of a rehearing. This Court must decide factual issues based on the transcript of the proceeding and exhibits admitted into evidence in the Court of Summary Jurisdiction, subject to exceptions not here relevant. This Court may give such judgment on appeal as ought to have been given by the Court of Summary Jurisdiction. Further, the appeal is subject to what was said by the plurality of the High Court in Fox v Percy:
[T]he appellate court is obliged to conduct a real review of the trial and … of [the trial] judge’s reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect.
[53]	In my opinion, the appellant’s evidence of the admitted threat was unreliable. It would not make much sense that a man who arrived uninvited at the home where his estranged wife was living, imposed himself on her and taken her ID card in an attempt to restrict her evening social activities, would threaten to punch her if she came near him in future. Logic would suggest that, if anyone were to have made such a threat, it would have been a person in the position of the complainant. The controlling conduct and the intrusion into a person’s home uninvited were the conduct of the appellant. The pretext for the admitted threat to punch was spurious. The admitted threat was improbable. Notwithstanding his apparent admission, the appellant should not have been hoist with his own petard. 
[54]	For a combination of reasons, therefore, there was a miscarriage of justice. The magistrate’s guilty finding should be set aside, the conviction of the appellant on count 1 quashed, and a verdict of ‘not guilty’ entered. 
Appeal against guilty finding – count 2 
[55]	Under s 187(a) Criminal Code, ‘assault’ is defined, relevantly, to mean the direct or indirect application of force to a person without his consent. 
[56]	Relevant to count 2, a close reading of the evidence shows that there was actually very little in contest between the appellant and the complainant as to what happened up to the time the appellant gripped or squeezed the complainant’s wrist. The appellant went to the complainant’s handbag and took hold of her ID card, without permission. The appellant’s intention was to “walk out” or “take off” with the ID, because he did not want the complainant to go out that evening. He wanted to control or limit the complainant’s ability to go out and enjoy herself. He acknowledged in evidence that it was wrong to try to stop her going out. The complainant said that she asked the appellant to give back the ID. She was angry with him. However, she said that she asked “in a good way”, that is, politely. She agreed that she grabbed the appellant’s arm to get back her ID. Although the appellant did not concede that the complainant asked him politely to return her ID card, his evidence otherwise was very similar to hers: “… she seen me grab it and she grabbed me by the hand”  and, shortly after: “… she seen me grab the ID and she grabbed me by the wrist”. The complainant agreed that the sequence of contact (after the appellant had taken her ID card) was that she grabbed the appellant’s arm and that he then grabbed her arm to pull it off his. The appellant also said that he grabbed the complainant’s wrist to get her off him. In relation to that grabbing, the complainant said that the appellant squeezed her wrist hard, in a twisting motion, causing pain. There is some disagreement as to what then happened. The complainant said that when the appellant grabbed her wrist, she let go of his arm. The appellant claimed that the two then wrestled and argued over the ID, but conceded that he did not let go of the ID for some time, despite the complainant’s repeated requests to give it back. 
[57]	The complainant was not contradicted in cross-examination in relation to her very specific evidence that the appellant forcefully squeezed her wrist, in a twisting motion. Defence counsel asked the complainant if she had first grabbed the appellant’s arm before he twisted her arm (which she acknowledged), but did not contradict her evidence that the appellant had twisted her arm. In giving evidence, the appellant did not deny that he had forcefully squeezed the complainant’s wrist, in a twisting motion; he admitted in examination in chief that he had grabbed the complainant’s wrist, and later admitted by clear implication that he had squeezed the complainant’s wrist, although claiming, “we was just squeezing each other’s hand”. 
[58]	The physical altercation between the appellant and the complainant started when the appellant unlawfully took possession of the complainant’s ID card, and then refused to give it back. He physically resisted giving back the ID card. There is no doubt that, in gripping or squeezing the complainant’s wrist, the appellant intended to apply force. It may be properly inferred beyond reasonable doubt that the appellant knew that the complainant was not consenting to the application of such force or that he knew that she might not be consenting and proceeded regardless.  
[59]	Counsel for the appellant submits that the prosecution failed to prove beyond reasonable doubt that the altercation between the parties was not consensual. I reject that submission. 
[60]	The concept of ‘consent’ is not defined in any relevant part of the Criminal Code, but ‘consent’ means agreement. Consent may be given or communicated expressly or impliedly by conduct, including by words spoken or by body language. Inferences may be drawn in relation to consent having been given. Whether a victim of an alleged assault has consented to the application of force is a question of fact. 
[61]	In this case, the appellant’s actions were clearly and obviously contrary to the wishes of the complainant. I refer to his taking her ID card from her bag, depriving her of the possession of her property, and retaining the card notwithstanding her requests for its return. But for the action of the complainant in taking hold of his arm, the appellant would have maintained his unlawful possession of the complainant’s card. Indeed, as he admitted, he intended to leave the house with the card and take off. I accept the respondent’s submission that the complainant was entitled to take reasonable measures to prevent that happening, and that she did so. When the complainant grabbed the appellant’s arm, she was trying to retrieve her property and/or stop the appellant ‘taking off’ with it. In my opinion, nothing said or done by the complainant up to the time the appellant gripped or squeezed her wrist amounted to consent on her part to the application of force. 
[62]	Counsel for the appellant relies on the fact that, when asked if she had given permission for the appellant to treat her in the way she had described in her evidence, the appellant answered, “I love James. I love him. I been with him since we was 16. And I want him to come back home”. It is true that there was no direct evidence from the complainant at that stage that she had not consented to her treatment at the hands of the appellant. However, a short while earlier in her evidence, when asked why she had called the police, the complainant answered, “Because I didn’t want him to do any of this to me”. That is a tolerably clear statement that the assault and the other things done by the appellant to the complainant were done without her consent. In any event, the statements made by the complainant are not so significant in the facts of this case, because the circumstances of the assault itself make it very clear that the complainant did not consent to the application of force by the appellant. 
[63]	In my judgment, the elements of the offence of assault were made out (and the offence complete) when the appellant applied force to the complainant’s wrist without her consent. It is not necessary to examine the events which then followed.  
[64]	I turn to consider the appellant’s contention that the prosecution failed to prove beyond reasonable doubt that the appellant did not act in self-defence. The more specific contention is that the prosecution failed to negate the appellant’s evidence that he had acted in self-defence by grabbing the complainant’s wrist after she had already grabbed his arm. 
[65]	Defensive conduct (in this case, self-defence) was justified only if the appellant believed that his conduct was necessary to defend himself and the conduct was a reasonable response in the circumstances, as the appellant reasonably perceived them. The prosecution was required to prove beyond reasonable doubt either that the appellant did not believe, at the time, that his conduct was necessary to defend himself; or that the appellant’s conduct was not a reasonable response in the circumstances, as he reasonably perceived those circumstances to be. 
[66]	The appellant said in evidence that he grabbed the complainant’s wrist to get her off him. However, he admitted that this occurred when he was withholding the complainant’s ID card from her and she was attempting to retrieve it. His withholding the ID card was unlawful. He could simply have given the card back to the complainant, or let go of it. He knew that he was ‘doing the wrong thing’ in withholding it. In giving evidence, he did not even pretend that he believed that his conduct was necessary to defend himself. He was in a state of anger about the complainant going out. As found by the magistrate, he was not at any stage in fear for his own safety.
[67]	Having weighed all the evidence, I am satisfied beyond reasonable doubt that the true purpose of the appellant’s application of force was to enable him to continue to unlawfully withhold the complainant’s ID card from her. I am satisfied beyond reasonable doubt that the appellant did not believe that his conduct was necessary to defend himself. He was resisting the complainant’s attempt to recover her property. Moreover, I am satisfied beyond reasonable doubt that the appellant’s conduct in assaulting the complainant by applying force to her arm was not a reasonable response in the circumstances as he reasonably perceived them. 
[68]	As mentioned in [36], the magistrate’s findings did not fully determine the issue of self-defence in accordance with s 29(2) Criminal Code. Although the magistrate made a finding that the appellant was not at any stage in fear for his own safety, her Honour did not make an express finding as to the appellant’s subjective belief as to the necessity of his conduct to defend himself. Further, although it is clear that she rejected the appellant’s contention that his response was reasonable, her Honour did not make a specific finding of satisfaction beyond reasonable doubt that the appellant’s conduct was not a reasonable response in the circumstances as he reasonably perceived them. However, given my findings and conclusions in [67], these shortcomings do not affect the outcome of the appeal. 
[69]	An alternative approach to the determination of the appeal against the guilty finding on count 2 would be to ask whether the evidence was such that the magistrate ought to have had a reasonable doubt about the appellant’s guilt. As Hayne J explained in Libke v The Queen (Gleeson CJ and Heydon J agreeing): 
…. the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the … evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant’s guilt. 
[70]	In my judgment, the evidence in the court below did not require the conclusion that the magistrate should necessarily have entertained a reasonable doubt about the appellant’s guilt on count 2. I would add the following observation. The magistrate was able to compare the physical build of both the complainant and the appellant, and commented on the difference in size in delivering her reasons. Her Honour took this into account in assessing the appellant’s subjective belief as to the need for defensive conduct and as to whether he acted in self-defence. The magistrate had a significant advantage over this Court is terms not only of hearing the witnesses but also seeing and observing them. 
[71]	The findings and conclusions in [67] above effectively determine the appeal against conviction on count 2 in favour of the respondent. In the circumstances, it is not necessary to consider the further limit on defensive conduct contained in s 29(5) Criminal Code. 
[72]	The guilty verdict on count 2 should stand. I affirm the finding of guilt and the conviction recorded in consequence of that finding. 
[73]	I will hear from the parties as to consequential orders. The question of sentence has not been argued on appeal, and, subject to further submissions, I would propose that the matter be remitted to the Local Court for further consideration of sentence.  
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