A former police officer convicted of domestic violence after breaking a woman's nose has lost his appeal after a judge dismissed his argument of headbutting and biting as “self-defence”.
James William Swan, 42, was found guilty of three charges of assault occasioning actual bodily harm against the woman, and one of choking between 2018 and 2019.
The former highway patrol officer appealed on grounds the woman was unreliable, pointing to inconsistencies in her evidence, and that the magistrate had not adequately considered his acting in self-defence.
Mr Swan's legal team also submitted that the woman was distrustful given she had lied about an ongoing relationship with another man.
Judge Chris Hoy on Monday in the NSW District Court rejected the notion biting and headbutting could be reasonably considered self-defence, saying it had been “excessive”.
Judge Hoy described the “declining relationship' between the two as volatile, with violence often sparked from an argument over trust issues, and always involving alcohol.
But the judge did not agree the first magistrate had erred in not considering self-defence adequately.
He also highlighted the unequal physical stature between the two, and the fact that as a trained officer Swan had a variety of options to “repel a fracas”.
The Queanbeyan resident had been sentenced to a two-year community correction order which required good behaviour and following a mental health plan.
On Christmas day in 2018 the couple was visiting family north of Sydney “imbibing to excess,” before an argument escalated over a mobile phone.
Swan bit the woman on her left inner arm for up to 30 seconds, before she punched him back in the eye, according to the crown case.
The woman's mother gave evidence that her daughter returned really distressed with a broken nose, saying “he bit me, he bit me”.
She said Swan was later “absolutely devastated,” continually saying “this is not me, this is not me, I have to call the police”.
But her daughter pleaded not to, saying this was “out of character,” and Swan took her to the hospital where she lied about her injuries.
The next incident occurred in February 2019 while Swan was serving in the army reserves.
After an argument, Swan refused to leave the woman's room and choked her for up to 30 seconds while she sat on the bed.
She tried to peel his hands away from her neck but when they made a “cracking sound” he “immediately stopped and then apologised profusely,” she said, before the two went to bed.
Some months later emergency services were called after he bit her ear in the early hours following a night out.
Videos were shown to the first magistrate of the woman “approaching, wailing and screaming,” at times, while Swan states that he did bite her, although it was because of her “ongoing attack”.
The “hysterical” woman called her mother shortly after saying her ear was bleeding.
The woman agreed there had been a level of tussling and pushing back and forth, and that she had kicked him at one stage.
A former partner of Swan's gave character evidence that he had been a “genuine, caring and lovely bloke,” never known to be violent or abusive towards her.
In dismissing each appeal Judge Hoy said the complainant was a reasonable witness, was not prone to exaggeration, and had conceded quickly whenever she was wrong.
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