Smith v Thomas [2003] NTSC 35

PARTIES:	MATHEW WILLIAM ROSS SMITH

	v

	PETER MARK THOMAS

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY		

JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO:	JA 114 of 2002 (20211173)

DELIVERED:	11 April 2003

HEARING DATES:	28 March  2003

JUDGMENT OF:	MILDREN J

REPRESENTATION:

Counsel:
	Appellant:	P Elliott
	Respondent:	B Harris

Solicitors:
	Appellant:	
	Respondent:	Office of Director of Public Prosecutions

Judgment category classification:	C
Judgment ID Number:	Mil03297
Number of pages:	17

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

Smith v Thomas [2003] NTSC 35
No. JA 114 of 2002 (20211173)

	BETWEEN:

	MATHEW WILLIAM ROSS SMITH
	Appellant

	AND:

	PETER MARK THOMAS
	Respondent

CORAM:	MILDREN J

REASONS FOR JUDGMENT

(Delivered 11 April 2003)

[1]	This is an appeal against conviction under the provisions of the Justices Act.
[2]	The appellant has been convicted of two counts of unlawful assault aggravated by the circumstance of aggravation that the object of the assault was a female (contrary in each case to s 188(1) and (2)(b) of the Criminal Code) and with making a threat to kill with intent to cause fear, contrary to 
s 166(1) of the Criminal Code.
[3]	The grounds of the appeal as set out in the notice of appeal are as follows:
The learned Magistrate erred:
(1)	on the issue of the onus of proof
(2)	on the issue of corroboration
(3)	on the issue of credit
(4)	distress (sic)
[4]	At the hearing of the appeal, the first ground of appeal was abandoned and without objection two further grounds of appeal were added, namely:
(5)	the learned Magistrate erred in allowing the prosecutor to ask questions of the appellant concerning a telephone conversation he made to COMMS on 11 July 2002
(6)	the finding of guilt against the appellant was in all the circumstances, unsafe and unsatisfactory.
Was the verdict unsafe and unsatisfactory?
[5]	As a finding that the verdict was unsafe and unsatisfactory would result in an acquittal, it is convenient to begin with this ground first.  
[6]	The evidence led at the summary trial before the learned Magistrate, consisted of the evidence of the complainant, Ms Chin, Dr TE Reid the complainant's general practitioner, a neighbour Ms Nowland, another neighbour Detective Acting Sergeant Stephen Martin, another police officer Senior Constable Owen Blackwell who was staying with Detective Martin, Sergeant Frederick Glazebrook who had a conversation with the appellant, Acting Sergeant Andrea Littman who saw the complainant on the evening in question after the alleged assault and noted some of her injuries, and 
Senior Constable Vicky Kelk who attended at the alleged scene and also spoke to the appellant.
[7]	The appellant gave evidence on his own behalf.
[8]	The complainant's evidence was that she and the appellant had moved into a house at 2 Shield Court, Woodleigh Gardens (the premises) on 
13 December 2001.  She and the appellant had purchased the property jointly.  She and the appellant had formed a de-facto relationship in December 2000.  The complainant had a daughter, Melanie, who was having some difficulties at school and with the police.  As a result, Melanie had been referred to a counselling service referred to in the transcript as "Family Recovery".  At some stage Melanie moved out of the premises but the complainant continued attending the Family Recovery meetings alone, apparently because the appellant was for some reason not welcome.  In any event, on the night of 10 July 2002 at about 6 p.m., the complainant and the appellant had taken a walk together to discuss matters of difference in their relationship.  Subsequently, at about 7 p.m., the complainant left home to attend a Family Recovery meeting and returned about 10 p.m.
[9]	When she returned, the appellant was sitting watching television and drinking white wine.  According to the complainant he appeared to be quite drunk and was carrying on in front of the television set laughing and "just being over the top".
[10]	The complainant then had two glasses of red wine on ice, whilst the appellant kept refilling his glass as they sat at the dining table talking about the meeting that the complainant had just attended.
[11]	Subsequently, the appellant cleaned up in the kitchen and put the dishwasher on and they both then went into the shower together.  The water went cold, the appellant got really angry, got out of the shower, slammed the door and went to his study and turned the music right up loud.  The complainant got out of the shower and started putting cream on in front of the mirror at the vanity basin.  After a while she went into the study and asked the appellant to turn the music down before returning to the mirror.  The appellant then came out and said something to her but she couldn't hear.  She said, "What did you say?", he said something again, or "You heard me", and she said 
"I didn't hear you", and after that the appellant said that he was going to kill her and put his hand around her neck exerting slight pressure against the neck under the chin area.  The complainant said, "I'm going" and ran into her study.  At this stage all she was wearing was a blue towel.  She lay down on a two-seater lounge chair with her mobile phone in her hand.  The appellant followed her into the room, turned the light on, said something to her that she was not able to recall, went out and came in again and on about five occasions, opened the door, slammed it, opened it and slammed it as hard as he possibly could.  The complainant remained on the couch and eventually the appellant came into the room, put his hands around her throat and said, "I'm not going to hurt you, I'm going to kill myself".  At this stage he applied a "decent amount of pressure" around her neck, although it did not effect her breathing a lot.  The complainant said that she was scared that he was going to punch her and that he grabbed her wrist and started pulling her backwards and forwards shaking her, saying that he was going to kill her, that he was going to kill everyone at Family Recovery and he was going to kill himself.  He pulled her head back and was also trying to get her to look at him.  He said something like, "You've ruined my life.  I'll give you your money and why don't you just go".  Prior to that he had taken the mobile phone from her and thrown it on the floor in the dining area.  The appellant went into the dining area, picked up the mobile phone which was still in its leather cover, came back into the complainant's study and threw the phone against a wall.  He then removed the cover and took the phone apart.  He then grabbed the complainant whose towel came off leaving her naked.  She was screaming and he pulled her into the kitchen and pushed her back against a servery and was trying to get into the drawer.  She was screaming, "Somebody help me".  He grabbed her by the throat and said, "Stop screaming" and pressed her throat so hard that she could not breath and she had to tell him this.  After that, the appellant dragged her over the other side of the kitchen.  There was a knife block there.  He grabbed a knife out of the block and jammed her into the corner with a knife at her throat, telling her that he was going to kill her.  She put up her hand to try and push the knife away and received a cut between the index finger and thumb.  She said the knife was pointed at her jugular vein and later at her stomach and at her side.  Whilst all this was going on the music was, "really, really, really loud".  The complainant claimed that at that stage she was struck in the back.  Subsequently, the appellant let her go, turned his back on the complainant and walked down the corridor with the knife still in his right-hand and on the way he stabbed the fridge with it.  The complainant then grabbed a shirt that had been hanging over the back of a dining chair and ran out of the house through the back door, naked, holding the shirt to her.  She jumped the fence and ran across the road to a neighbour's house where there was a light on.  She knew that a police officer lived there and she told the police officer, Sergeant Martin, what had happened.  She had, in addition to the small cut on her hand, a number of other bruises and marks which were subsequently photographed.  She also went and saw her general practitioner, Dr Reid, the next day.
[12]	The appellant's account was that after the walk, during which matters in the relationship were discussed, the complainant went out to the Family Recovery meeting at about 7 p.m.  The appellant had dinner and a glass of wine and watched television until the complainant returned home at about 10.30 p.m.  The both sat at the dining table.  He asked her how the meeting went and whilst they were both sitting there, she drank a glass of red wine and he finished a second glass of white wine.  After that he went to the kitchen, stacked the dishwasher and wiped the benches down, then together they went into the shower.  Before he went into the shower he turned the music on at a fairly low volume.  Whilst in the shower, the water temperature became cooler because when the dishwasher fills up it takes the hotwater and the shower dips in temperature for 10 to 15 seconds.  They finished the shower, got out and dried off.  The complainant went and stood in front of the vanity unit where she put on her moisturising cream.  The appellant said that when she was finishing doing that he spoke to her and said he wanted to talk to her about the relationship.  The complainant went to her study with a towel wrapped around her and sat on the couch.  The light was on.  He went inside and told her that he did not believe that the relationship was going anywhere and he would like to buy her out.  It was common ground that the complainant had put up most of the money to purchase the property initially.  Her response to that was to throw the mobile phone at him.  She became very emotional, started slapping her face and was sobbing and crying.  He went down and kneeled in front of her in order to calm and settle her down.  She began to lash out at him trying to punch and hit him.  He placed his hand around her throat to try and give himself distance to deflect the blows for a few seconds.  She stopped lashing out but was still very upset.  She then got up and went to the kitchen and he followed her there.  She walked over and picked up a knife out of the knife block and was waving it around, holding it as if she may have been about to cut herself.  He lunged at her to grab her arm and a bit of a struggle ensued as a result of which he took the knife from her.  The complainant grabbed a T-shirt off a chair in the dining room and went out the back door.  The appellant thought that he would give her a few minutes to calm down.  Previously when the complainant had got really upset she would go outside and sit down on an outdoor setting by the pool and come back inside after 
10 minutes or so.  After a while the appellant turned on the back light in order to see where she was.  He could see that she was not in the back yard and as he did not know where she was, he decided to ring the police and report what had happened as he was concerned about her welfare.  Consequently he rang the police and after a discussion with the person who answered the phone (COMMS), he was put through to Sergeant Glazebrook which whom he had a conversation.
[13]	Neither the appellant nor the complainant departed significantly from their evidence under cross-examination.  None of the other witnesses called to give evidence were able to assist the learned Magistrate one way or the other.  In the end, the learned Magistrate believed the evidence of Ms Chin and disbelieved the account given by the appellant because of the way in which he answered certain questions during cross-examination.  The learned Magistrate said that he had regard, especially during the cross-examination of the appellant, to the appellant's demeanor; the learned Magistrate referred to two matters in particular which he considered to be signs of the appellant being evasive and concluded that he did not accept the appellant's evidence.
[14]	The test to be applied in a case such as this is whether, notwithstanding that as a matter of law there is evidence to sustain the verdicts, the Court thinks that upon the whole of the evidence it was open to the learned Magistrate to be satisfied beyond reasonable doubt that the appellant was guilty.
[15]	In answering that question, the Court must not disregard or discount either the consideration that the Court of Summary Jurisdiction is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the learned Magistrate has had the benefit of having seen or heard the witnesses: see M v The Queen (1994) 181 CLR 487 at 493.
[16]	Where the learned Magistrate has reached his conclusions based upon the demeanor of the witnesses, it is more difficult for an appellant in the position of this appellant to succeed.  As was said in M v The Queen at 
pps 494 – 495:
If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the Court is bound to act and to set aside a verdict based upon that evidence.  In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
[17]	The same considerations apply of course to summary trial by a Magistrate sitting alone and without a jury.  
[18]	In this case, it was submitted by Mr Elliott, counsel for the appellant, that the evidence contained discrepancies of such a kind that even making full allowance for the advantages enjoyed by the learned Magistrate, there is a significant possibility that the appellant was wrongly convicted.  Mr Elliott pointed to a number of matters, the first of which was the complainant's evidence that the music was turned on very loud by the appellant.  The evidence of the neighbour, Ms Nowland who lived next door, was that she just heard voices and music and thought, "Some one was having a chat and a few drinks".  She also said that she did not hear any female voice screaming.  Ms Nowland acknowledged that she had lost nearly all of her hearing on one side but said that her hearing in the other ear was very good.
[19]	The evidence of the complainant was that the window in the kitchen was open.  The evidence of Senior Constable Blackwell, who was staying at Sergeant Martin's house across the road, was that he had been watching television and he neither heard loud music nor screaming or yelling coming from the appellant's house.  The evidence of Sergeant Martin was to the same effect.  He said that whilst the television was on, it was not on very loud, but he also said that he had some hearing loss and that he was slightly hard of hearing.
[20]	I think in these circumstances that the fact that these witnesses did not hear any loud music or screams does not greatly assist the appellant.  Two of the three witnesses plainly had some hearing problems and there was other noise in the form of the television set in Sergeant Martin's home which may have masked noise coming from the house opposite.  The evidence of 
Ms Nowland leaves open the possibility that at the time when the music was turned up loud or the complainant may have been screaming, that she was inside another room with the door shut working on a computer and may not have heard noise coming from next door.
[21]	The next matter relied on by the appellant is the evidence of the complainant that the appellant was quite drunk when the complainant returned home from the Family Recovery meeting.  The evidence of the police officers who spoke to the appellant that night was to the effect that although they could smell alcohol on his breath, he was not drunk.  Certainly the evidence of the witnesses does not support the complainant's contention in this respect.  The learned Magistrate does not appear to have considered this aspect of the evidence.  
[22]	The learned Magistrate placed some weight, it would appear, on the injuries that the complainant suffered which he considered were consistent with what she said happened to her, "just as her flight seemed to be consistent with what happened".  However, so far as the flight is concerned, it would seem to me it would be consistent with either version.  Counsel for the appellant submitted that the injuries which she sustained could easily have been caused either during the struggle, which the appellant admitted to, whilst fending off an attack to himself and removing the knife from her, or could have been caused as well by her having to climb over the fence.  I agree with counsel for the appellant that the injuries are not very compelling one way or the other.
[23]	This being so, the learned Magistrate appears to have placed a great deal of weight upon two matters of evidence given by the appellant during cross-examination as the reason for disbelieving the account which he gave.  The circumstances relating to that piece of evidence are dealt with in ground 5 of the notice of appeal to which I will now turn, as they may well have relevance to this ground as well.
Ground 5 – the telephone conversation the appellant made to COMMS
[24]	The appellant gave evidence that he decided to ring the police to report what had happened as he did not know where the complainant had gone and the purpose of the call was that he was concerned about the complainant's welfare.  He said that when he rang up and spoke to the person who answered the telephone, he told that person that his partner had pulled a knife, that she had run out of the house and that he did not know where she was.  He was put through to Sergeant Glazebrook who told him that the matter had already been reported and that the complainant was over the road.
[25]	In cross-examination the prosecutor produced a transcript of the conversation which the appellant had had with "COMMS" and began to cross-examine the appellant on the contents thereof.  This was objected to by counsel for the appellant, initially on the basis that he had requested counsel for the prosecution to produce copies of all records of conversation and that, notwithstanding a direct inquiry, no copy of that conversation had been provided to the defence.
[26]	Further objections were taken on the basis that this material should have been led by the prosecution in evidence-in-chief and that they were in effect splitting their case seeking to get the appellant to admit in cross-examination the contents of the statement.
[27]	I consider that the way in which the prosecutor was allowed to cross-examine the appellant in the circumstances was unfair.  The learned Magistrate should have accepted that at the very least there had been a mis-understanding between counsel, as a result of which counsel for the appellant was not made aware and not provided with, a transcript of the conversation which the appellant had had with COMMS.  More importantly, the prosecutor was allowed, in effect, to get into evidence through the appellant, the contents of the conversation, or at least parts of the contents of the conversation, without having first led the evidence as part of the evidence-in-chief.
[28]	In The Queen v Soma (2003) HCA 13, the High Court dealt with the admissibility of a tape of a conversation between police and the accused in circumstances where the conversation was not led in the Crown case.  The tape was first put to the accused during the course of the accused's cross-examination and was admitted into evidence after the accused admitted making the statements contained in the tape.
[29]	The majority, Gleeson CJ, Gummow, Kirby and Haine JJ said: 
30.	In the present case, the prosecution had available to it evidence of statements made by the respondent to police.  The prosecution called the interviewing police officer.  In this Court it was accepted that the statements which the respondent made to the police were adverse to his interests; they were not merely and exclusively self-serving denials.  If there were doubts about the admissibility of the record of interview, those doubts could have been resolved on a voir dere.  If necessary, the record of interview could have been edited to exclude any objectionable parts.  None of these steps was taken.
31.	If the prosecution case was to be put fully and fairly, the prosecution had to educe any admissible evidence of what the respondent had told police when interviewed about the accusation that had been made against him.  To the extent to which those statements were admissible and incriminating, the prosecution, if it wished to rely on them at the respondent's trial, was bound to put them in evidence before the respondent was called upon to decide the course he would follow at his trial.  To the extent that an otherwise incriminating statement contained exculpatory material, the prosecution, if it wished to rely on it at all, was bound to take the good with the bad and put it all before the jury.  And consistent with what it said in Richardson v The Queen and Apostilides the prosecutor's obligation to put the case fairly would, on its face, require the prosecutor to put the interview in evidence unless there was some positive reason for not doing so.  The only reason proffered for not doing so in this case was, as the Court of Appeal rightly found, not sufficient.
[30]	Their Honours held that the material in that case could not be used as evidence of a prior inconsistent statement.  In para 37.  their Honours said:
Although there may be circumstances in which it would be within the discretion of a trial judge to permit the prosecution to make a case in rebuttal by tendering evidence to prove a prior inconsistent statement made by an accused relative to the subject matter of the proceeding, those circumstances will be rare.  If objection is taken to the prosecution seeking to follow a course of the kind followed here, then, as was said in Niven, close attention would be necessary as to whether to permit the course proposed would possibly cause prejudice to the accused and to whether any prejudice of the prosecution could have been avoided by tendering the evidence of that prior statement in the course of its case.
[31]	I think the same principles apply in this case.  Notwithstanding the submission of counsel for the respondent, Mr Harris, I consider that the statement made by the appellant to COMMS was admissible as it was not wholly self-serving.  In any event, there was no inquiry by the learned Magistrate as to why this evidence was not led in evidence-in-chief.  In view of the position which the appellant found himself, where the statement which he made to COMMS had been withheld from him and his advisor by the prosecution, it would not have been fair for the Magistrate to have allowed further cross-examination on that conversation to have taken place. Instead of allowing the objection the learned Magistrate allowed extensive cross-examination on that conversation and ultimately it was the learned Magistrate himself who elicited the answer which his Worship ultimately relied upon in finding against the appellant.  I note in this regard that the learned Magistrate relied upon the appellant's hesitancy in admitting that he had a secondary reason for calling the police, viz. the likelihood that the complainant would seek a restraining order against him, as the complainant had a history of seeking restraining orders against her previous partner.  I am not surprised that the appellant might not wish to raise questions relating to restraining orders given the ease with which orders of this kind are able to be obtained, their potential for abuse in that they are often sought entirely for secondary purposes, and the consequences which such an order might have had to the appellant.  The evidence in this case was that both parties sought restraining orders against each other. I am unable to see how that assists the finder of fact in this case.
[32]	The other matter relied upon by his Worship which his Worship said was only a small point, but which nevertheless was the only other reason which his Worship offered for rejecting the evidence of the appellant, was the appellant's evidence in cross-examination concerning whether he had been suffering from depression.
[33]	The prosecutor asked at the beginning of the cross-examination the following questions:
You did make a threat to kill yourself that night, didn't you?--- No I didn't.
You have a history of depression? --- No.
You've been on medication for depression? --- In the past I have, yeah. 
And in fact earlier this year? --- No.
No?  When did you get off your medication for depression? --- In December of last year.
December of last year? --- Yep 
No recurrence since that date? --- No.
It is difficult to see how these questions and answers affect the appellant's credibility.
Conclusion
[34]	In my view, the learned Magistrate did not have adequate reasons for rejecting the appellant's evidence.  I consider in all the circumstances the learned Magistrate should have had a reasonable doubt.  The appeal is therefore allowed.  The convictions are quashed and I enter a verdict of not guilty on each count.  
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