Ebatarintja v Westphal [2011] NTSC 83


PARTIES:                                         EBATARINTJA, Janella




                                                         WESTPHAL, Lindsay






FILE NO:                                          JA – AS34 of 2011 (21102344)


DELIVERED:                                   19 OCTOBER 2011


HEARING DATES:                           3 OCTOBER 2011


JUDGMENT OF:                              MILDREN J


APPEAL FROM:                               MR G BORCHERS SM









    Appellant:                                     R. D. Anderson

    Respondent:                                  J. Tierney



    Appellant:                                     NT Legal Aid Commission

    Respondent:                                  Director of Public Prosecutions


Judgment category classification:    C

Number of pages:                             11






Ebatarintja v Westphal [2011] NTSC 83

No. JA – AS34 of 2011 (21102344)





                                                     JANELLA EBATARINTJA





                                                     LINDSAY WESTPHAL







(Delivered 19 October 2011)


[1]   This is an appeal against conviction following a trial in the Court of Summary Jurisdiction.  The appellant was charged with aggravated assault contrary to s 188 (1) of the Criminal Code.  The case against the appellant at trial was that the complainant, Tristram Malbunka, and his wife, the appellant, and four other members of the complainant’s family, had been drinking at the Flynn Drive Oval.  They were drinking beer from a twenty four pack, bundy and coke, and also wine.

[2]   The prosecution’s case at trial was that at some stage after dark, the complainant and his wife walked back to the Larapinta Valley Camp where they lived at House No. 9.  After they returned home, a jealous argument was commenced by the appellant who was upset that the complainant had been talking to a female member of the family.  The complainant had decided to leave but before he could do so the appellant pushed him and then struck him on the leg, the left elbow, the left bicep and on top of the head with a stick causing him to fall to the ground.  The appellant’s case was that the argument was not over jealously issues but because the complainant wanted to continue drinking and the appellant wished him to stop.  Her evidence was that the argument took place on the verandah and she pushed him causing him to fall and he hit his head on the edge of the concrete verandah.

[3]   At the trial in addition to the complainant’s evidence the prosecution called evidence from Constable Hancock who that evening attended at the Alice Springs Hospital and observed the injuries to the complainant.  She gave evidence that he had a big lump on his left arm near his elbow.  She said he was holding both his arms stating “they were both hurting”.  She saw a large cut on his head and he had some abrasions on his legs and another on his right arm as well.

[4]   Constable Hancock said that when she attended the hospital that evening, she was accompanied by Constable Porch who took some photos of the complainant.  The photos, which were tendered in evidence, demonstrated a cut to the head and to the back of the left arm in the vicinity of the elbow.

[5]   By consent, a statutory declaration from Dr. Paul Helliwell was tendered which indicated that the complainant was brought into the hospital by ambulance “after being hit by his wife with a star picket on the head and left arm”.  The injuries seen were a three centimetre laceration on the back of the head and a small laceration to the left elbow.  The report indicates the injuries were not formally examined by a doctor and was seen only by a nurse on the reception desk and that the complainant then left.  That was the end of the Crown case. 

[6]   The accused gave evidence that she did not hit the accused with a stick, that the complainant was going to punch her so she pushed him and he fell on the corner of the verandah floor and hit his head on the ground.  She said that her cousin Anna Ebatarintja was present at the time. 

[7]   The defence called Anna Ebatarintja who stated that she was seventeen years of age and lived at House No. 2 Larapinta Valley Camp.  She confirmed that the appellant was her cousin and stated that the complainant was her brother in law.  Her evidence was that she went to House 9 in order to get some washing that she had left there.  It was dark and she saw the appellant and complainant sitting in the front yard of House 9 drinking VB beer.  She said that she saw the appellant push the complainant when they were both on the verandah, that the complainant fell backwards flat onto the ground and had blood on his head.  She then rang for the ambulance.  Her evidence was that she did not see the appellant hit the complainant with a stick.



The Decision of the Learned Magistrate

[8]   It is plain from his Honour’s decision that he accepted the evidence of the complainant and he rejected the evidence of the appellant and to the extent Anna Ebatarintja gave evidence that the appellant fell to the ground as a result of a push, he rejected that as well.  His Honour found that there was no element of self defence.  He found that the photographs in particular supported the evidence of the complainant.  He also found that the appellant was very intoxicated whereas the complainant was sober.  He found that the prosecution had proved its case beyond reasonable doubt.

Grounds of Appeal

[9]   The Notice of Appeal sets out the following grounds:

(1)            The learned Magistrate erred in failing to properly direct himself as to the burden of proof in a criminal trial.

(2)            The learned Magistrate erred in failing to direct himself as to the use to be made of a prior inconsistent statement.

(3)            The learned Magistrate erred in failing to direct himself as to the use to be made of evidence of character.

(4)            The verdict was unsafe or unsatisfactory.

[10]        At the hearing the appellant abandoned the first ground of appeal.


Ground 2 – Prior Inconsistent Statement

[11]  This ground complains that the appellant had proven a prior inconsistent statement from the complainant concerning whether he had been assaulted by a stick or by a star picket.  The complainant’s evidence was that he did not tell the police when he was at the hospital that the appellant had grabbed a star picket near the verandah and hit him with it.  His evidence was that she grabbed a stick.  The evidence of Constable Hancock was that she was the person who took the appellant’s statement and that the complainant complained that the appellant “walked outside to get away from her and out on the verandah she came at him with a star picket”.  She distinctly recalled being told that it was a star picket.

 [12]The learned Magistrate during submissions indicated to counsel that he did not regard the discrepancy in the evidence as an issue of credit at all and the fact that he was hit by a star picket or a stick was irrelevant.

[13]  It was submitted by Mr Anderson that there is a significant difference between a star picket and a stick and that the learned Magistrate was wrong to reject the submission that the discrepancy did not reflect on the complainant’s credit.

[14]  At the trial the complainant was cross examined about his statement to the police.  The complainant said that he could not read English.  He was asked in cross examination the following:


Mr Anderson:”Right.  When the police took the statement from you did you speak to them and did they write something down?”


Complainant: “Yeah”.


Mr Anderson:“Do you remember that? Is that what happened?”


No audible response.


Mr Anderson: “I’m going to read out – well, did they read out what they wrote in the – did they read out to you what you said to them after they wrote it down?”


Complainant: “No”.


Mr Anderson:“No.  So have you had anything read out to you about what happened that day and what you said happened that day, by anybody?”


Complainant: “No”.


Mr Anderson:“No okay.  Did you tell the police when you were at the hospital that Janella Ebatarintja grabbed a star picket near the verandah? Did you tell them that?”


Complainant: “No”.


[15]   No effort was made to tender the statement.  Constable Hancock was not asked whether the statement was signed by the complainant or whether she read it out to him.

[16]   As mentioned earlier, there was also some other evidence that suggested that the complainant had told the nurse who examined him at the hospital that he had been struck with a star picket because that was recorded in the hospital notes.

[17]   It was submitted on behalf of the respondent that the evidence of Constable Hancock was inadmissible as it was strictly speaking hearsay and that the appellant did not comply with Section 20 of the Evidence Act.

[18]   Section 20 provides that “...it if is intended to contradict the witness by the writing,  his attention shall, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him”.

[19]   It was put that this part of Section 20 was not complied with.  In my opinion there is no substance to that submission.   It is not essential that the written document be tendered.  It was open to counsel for the appellant at trial to prove a prior inconsistent statement in the manner in which it was done.

[20]   However I think it is clear that the learned Magistrate did not consider that the difference between the star picket or the stick had any significance so far as the complainant’s credit was concerned.  It is well established that cross examination purporting to attack the credit of a witness is impermissible unless acceptance of the truth of the matter suggested would, in truth, affect the credibility of the witness.   No objection was taken to the evidence but it was a matter for the learned Magistrate to decide in all of the circumstances whether the evidence did affect his opinion as to the reliability of the complainant.  It is plain that the learned Magistrate took the view that, regardless of whether or not the complainant told the police that he was attacked with a star picket rather than a stick, this did not affect his view of the complainant’s credibility.  That was a matter which he was entitled to decide, particularly as the evidence was that, at the time the complainant was struck, it was dark and there was no light illuminated on the verandah.  I therefore do not think that this ground of appeal has been made out.

Ground 3 - Character Evidence

[21]   At the trial, the appellant’s counsel was able to establish that the appellant had no prior convictions either in the Northern Territory or elsewhere.  A formal submission to that affect was made by the Crown.  No specific evidence as to good character was led.  No submission was made by counsel for the appellant at trial that the appellant’s good character was relevant to the question of whether in fact the appellant had committed the crime charged or was relevant to the appellant’s credibility.  There are conflicting opinions as to whether or not the mere absence of convictions is evidence of good character.  The position in New Zealand is that such evidence is not evidence of good character[1].  The position in England is otherwise[2].  I do not think there is any settled practice in this jurisdiction one way or the other.  It seems to be me that the best that could be said about the evidence is that it may have been open to the learned Magistrate to take it into account in accordance with Melbourne v Queen[3] particularly in assessing whether or not to accept the evidence of the complainant as against the evidence of the appellant but he was not obliged to do so, especially as he was not invited to do so by counsel.  Furthermore, it is most unlikely that the learned Magistrate overlooked the appellant’s status as a person without any prior convictions.  The learned Magistrate delivered judgment ex tempore immediately after the conclusion of the trial.

[22]   I do not consider that this ground of appeal has been established.

Ground 4 – Whether Verdict Unsafe or Unsatisfactory

[23]   The test to be applied in a case such as this is whether 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 accused was guilty[4].  Full allowance must be made for the advantage enjoyed by the learned Magistrate who heard and saw the witnesses, but if the evidence upon the record itself, “...contains discrepancies, displays adequacies, is tainted or otherwise lacks probative force in such a way as to leave the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the [Magistrate], 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[5].

[24]   It is apparent from his Honour’s reasons that he accepted the evidence of the complainant and rejected the evidence of the appellant that she was acting in self defence and only gave the complainant the push.  In arriving at these conclusions, the learned Magistrate found that at the time of the altercation the complainant was sober and the appellant was intoxicated.  There was ample evidence to support those conclusions.  His Honour also found that the injuries were consistent with being hit with a stick rather than being pushed and hitting his head on the ground, as alleged by the appellant.  Although his Honour put particular weight on the location of the injury to the head, there was plenty of other evidence to support that conclusion, including the evidence from Constable Hancock who saw “a big lump on his left arm near his elbow, a large cut on his head and some abrasions on his legs as well as another one on his right arm”. 

[25]   So far as the independent witness Anna Ebatarintja was concerned the learned Magistrate noted that her evidence was the appellant and the complainant were seated drinking.  There was no other evidence to suggest that this was the case.  Although she says they argued, that the appellant pushed the complainant, and that she was watching the appellant and the complainant all the time, she gave no evidence of seeing a punch thrown by the complainant.  The learned Magistrate noted that her evidence did not assist the appellant in relation to the issue of self defence.  The learned Magistrate rejected her evidence that the complainant fell to the ground as the result of a push.  His Honour noted “...she did not see a great deal of what went on, her evidence is extremely selective in what took place on this evening”.

[26]    Having reviewed the whole of the evidence myself and made my own independent assessment of it, I am not satisfied that the evidence contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force such as lead to the conclusion that there is a significant possibility that an innocent person has been convicted.


[27]   The appeal is dismissed.

[1] R v Falealili [1996] 3 NZLR 664 at 667.

[2] R v Vye [1993] 3 All E.R. 241

[3] (1991) 198 CLR 1

[4] M v Queen (1994) 181 CLR 487 at 494-495

[5] N v Queen (1984) 181 CLR 487 at 494.