Adam (a pseudonym) v Nihill [2026] ACTSC 25

1. This is an appeal from a decision in the Magistrates Court delivered on 1 December 2023. The appellant was found guilty of the following charges:

(a) A charge of common assault, contrary to s 26 of the Crimes Act 1900 (ACT) (Crimes Act) (CC2023/5077) (the assault charge); and

(b) A charge of intentionally and unlawfully choking, suffocating or strangling another person, contrary to s 28(2)(a) of the Crimes Act (CC2023/8235) (the choking charge).

2. The charges related to conduct that occurred during an incident on 16 May 2023. The complainant in both charges was the appellant’s daughter. She was 13 years old at the time of the incident. Due to the family relationship between the appellant and his daughter, each of the offences were aggravated offences because they involved family violence: ss 9A(b) and 48C of the Crimes Act.

Grounds of appeal

3. The grounds contained in the amended notice of appeal filed 27 February 2024 assert:

(a) The evidence on the hearing was not capable of establishing the offences as particularised (Ground 1).

(b) The court below should have had a reasonable doubt about the reliability of the complainant (Ground 2).

(c) Error in making and relying on an intermediate finding of fact that force can be applied to the neck and not leave a mark (Ground 3).

Particulars of Ground 3 (i) The magistrate erred by making and relying on that finding in the absence of expert evidence. (ii) The magistrate erred by purporting to rely on “common knowledge” in making that finding. (iii) The magistrate erred by reversing the onus of proof in making that finding. (d) Factual error in misstating the evidence about when a Snapchat message relied on as complaint evidence had been sent by the complainant to her friend (Ground 4). (e) Error in the application of the rule in Browne v Dunn (1893) 6 R 67 (Browne v Dunn) (Ground 5).

(f) Error in the application of the Liberato/De Silva direction (Ground 6).

4. The relief sought is that the appeal should be upheld, the verdicts set aside and findings of not guilty entered in relation to the charges, or alternatively, that the proceeding be remitted to the Magistrates Court (differently constituted) to be heard and determined according to law.

The court’s power and task on appeal

5. Being an appeal by the person who was convicted in a matter involving charges under the Crimes Act, the power the court is exercising is governed by ss 207 and 208 of the Magistrates Court Act 1930 (ACT) (MC Act). Applying s 214 of the MC Act, the court considers the evidence given in the proceeding out of which the appeal arose and has the power to draw inferences of fact. In that way, the appeal is conducted as a rehearing, with the approach to be taken set out in Alexander v Bakes [2023] ACTCA 49 (Alexander) at [13]: Where an appeal is by way of rehearing, generally an appellant may succeed only by demonstrating material error in the decision below, whether legal, factual or discretionary: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 (Allesch) at [23]. This is noting that a court on a rehearing is to conduct a real review of the evidence given at first instance and the judge’s reasons for judgment and, while respecting any advantage that the primary judge enjoyed, should not shrink from giving effect to its own conclusion: Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551, reinforced by the High Court in Lee v Lee [2019] HCA 28; 266 CLR 129 at [55]-[56].

6. The Court of Appeal in Alexander later discussed the court’s approach and the process by which error may be demonstrated, stating at [21]-[23]: 21․ Consideration of whether the appellant has demonstrated error in the magistrate’s decision must also take account of the pressures of the Magistrates Court. 22․ It must always be borne in mind that the appeal is a “process for the correction of error”: McFarlane at [96]. Two consequences flow from this. First, the onus is on the appellant to demonstrate that there is error in the decision below: Allesch at [23]; Lukatela v Birch [2008] ACTSC 99; (2008) 223 FLR 1 at [19]. Second, it is incumbent on the appellant to identify the alleged error in the magistrate’s decision in their grounds of appeal: Carroll v R [2009] HCA 13; 254 CLR 259 at [8]; R v Ralston [2020] ACTCA 47; (2020) 285 A Crim R 159 at [127]. 23․ If an appellant identifies the ground of appeal from the Magistrates Court as being that the verdict is unreasonable, the Court will proceed on the basis that the appellant challenges the Magistrate’s ultimate factual finding. If an appellant wishes to challenge any intermediate factual finding, such a challenge should be pleaded as a specific ground of appeal.

7. If error is established, the court’s power to intervene is governed by s 218(1) of the MC Act, which permits the court to: (a) confirm, reverse or vary the conviction, order, sentence, penalty or decision appealed from; or (b) give the judgment, or make the order, that, in all the circumstances, it considers appropriate, or refuse to make an order; or (c) set aside the conviction, order, sentence, penalty or decision appealed from, in whole or in part, and remit the proceeding to the Magistrates Court for further hearing and decision, subject to the directions the Supreme Court considers appropriate. Grounds 1 and 2: Was the evidence capable of establishing the charges as particularised, and should the court below have entertained a reasonable doubt about the credibility of the complainant?

8. Ground 1 is directed to the ultimate finding of guilt for each charge, focussing on the particulars of the charge as they were put in opening. I have dealt with those arguments and Ground 2 together, because the considerations overlap. On independent assessment, I have found that the complainant’s evidence was credible and that the magistrate’s findings on the assault and choking charges were reasonably open, for reasons now explained.

Charges as particularised

9. The assault charge was charged as follows: That he, in the Australian Capital Territory, on 16 May 2023, did assault [the complainant] and the offence involved family violence.

10. It was described by the prosecution in opening as follows: The defendant has picked up the complainant around her waist and thrown or pushed her into the wall outside the complainant’s bedroom.

11. The choking charge was charged as follows: That he, in the Australian Capital Territory, on 16 May 2023, intentionally and unlawfully, choked, suffocated or strangled another person, namely, [the complainant] and the offence involved family violence.

12. It was described by the prosecution in opening as follows: The defendant placed two hands around the complainant’s neck for about 30 seconds really tight[ly]. Elements of each offence

13. Some understanding of the elements of the offence is necessary, to then consider whether the evidence accepted by the magistrate was incapable of supporting the charge.

14. The case proceeded on the elements of the offences set out in an aide memoire handed up by the prosecution at the outset of the hearing. For the assault charge, the elements were as follows: 1. The defendant inflicted force on another person; 2. The defendant intentionally or recklessly inflicted force on another person; 3. The other person did not consent to the infliction of force; and 4. The defendant has no lawful excuse for the application of force.

15. For the choking charge, the elements were as follows: 1. The defendant suffocates, chokes or strangles another person; 2. The defendant intends to suffocate, choke or strangle the other person; and 3. The conduct is not lawful.

16. The definition of choke is provided in s 27 of the Crimes Act as including applying pressure “to any extent, to the person’s neck”.

17. There were no defences raised of self-defence or lawful chastisement.

Findings in the court below

18. The findings in the court below were as follows (emphasis added): So I will deal then with my precise findings. I find that on 16 May 2023, the defendant at his home and the home of the complainant, his 13-year-old daughter, [name omitted]. He at one stage picked her up in a way that could be by her waist and threw her to some degree in the way that she, to some degree, landed against the wall. I do not make a finding that it was done particular[ly] forcefully. And I also make a finding on the same day, he placed his hands around her neck while she was laying on the bed. Although I do not make any finding as to the degree to which that occurred. And I do so noting that the complainant says it occurred for some 30 seconds, but time is notoriously uncertain when things are happening which are acute and I note she said that she could not breathe at a point in time but in circumstances where there is simply no evidence or no marks visible, it’s difficult for me to be confident that a force is applied to a significant degree, to that degree where there are no marks.

19. The emphasised words are the findings regarding the assault and choking charges respectively. The court below then made final comments about the difficult circumstances and background to the conduct before stating (emphasis added): … I find beyond reasonable doubt that in relation to the common assault charge, the defendant inflicted force upon his daughter by lifting her up. Obviously that was intentional. He did so without her consent, and he did so where there was no lawful excuse at the time of doing so. In relation to the choke, suffocate, strangle charge, I find beyond reasonable doubt that he applied force using both hands to her neck while she was on the bed. He did so with intention to apply that force to her neck and there was no consent, and it was not otherwise lawful.

20. Again, the emphasised words are the finding with regard to the mechanism by which force was used.

Arguments on appeal

21. The complaint on appeal is that: (a) The evidence supporting the assault charge was not capable of supporting the charge as particularised, namely that the complainant was lifted off the ground and thrown into a wall some two metres away by the appellant; and (b) The court below found the choking charge proven on a basis other than what was particularised in opening.

22. With regard to the assault charge, the problems with the evidence were identified as follows: (a) The complainant’s account was inherently unreliable and exaggerated. (b) The complainant’s account was inconsistent at times and critical parts were unbelievable and did not accord with common sense or the objective evidence. (c) There were inconsistencies in the complainant’s evidence. (d) There was no evidence that could resolve the doubts as to the complainant’s reliability, created by the unsatisfactory aspects of her evidence.

23. With regard to the choking charge, the complaint concerned the words “for about 30 seconds really tightly”. It was submitted that the magistrate did not make a finding about the duration or the extent of the force. The appellant argued that the mere fact of a finding proven on a basis other than what was particularised demonstrates that the evidence was not capable of establishing the choking charge as particularised.

24. Further, the appellant argued there were inconsistencies, discrepancies and other issues with the evidence in relation to the choke, such that the court below ought to have entertained a reasonable doubt. There were additional issues with the reliability of the complainant’s evidence which feed into that submission but are also separately addressed as the substance of Ground 2 below.

25. The respondent argued that with respect to each charge, the essential elements were proven beyond reasonable doubt and that upon the whole of the evidence, it was open to the court below to find the offences proved on the factual bases articulated by the magistrate.

26. The complaint about the choking charge was based on a false premise that because additional facts were referred to in an opening, they then had to be proven beyond reasonable doubt. The evidence to be given was also outlined in opening. Merely providing additional facts in the course of the opening does not elevate those facts to material particulars. The essential particulars were those that constituted the elements of each charge.

Applicable legal principles

27. There are two aspects to the complaint under Ground 1 and two sets of principles arising. The first is that the evidence was not capable of establishing the charges. The second aspect of the complaint relates to the charges as particularised.

28. As the appellant submitted, the first aspect of the complaint may be treated as a ground alleging that the ultimate findings were unreasonable. It requires the court to ask itself whether it considers that upon the whole of the evidence it was open to the court below to be satisfied beyond reasonable doubt that the accused was guilty of the charges: M v The Queen [1994] HCA 63; 181 CLR 487 (M) at 492-495; and see Dansie v The Queen [2022] HCA 25; 274 CLR 651 (Dansie) at [7]-[8] and Lang v The Queen [2023] HCA 29; 278 CLR 323 at [251], all of which were cited in Alexander at [14] (discussing the approach when considering whether a verdict is unreasonable).

29. In considering whether the finding of guilt was open, it is not enough to examine a complainant’s account and determine whether it enabled a fact-finder to accept it. What is required is an “independent assessment” or weighing of the competing evidence, to determine whether the verdict of guilt was unreasonable or could not be supported: SKA v The Queen [2011] HCA 13; 243 CLR 400 at [24]; and M at 492.

30. An independent review of the evidence requires more than mere satisfaction as to the existence of a pathway to proof of guilt beyond reasonable doubt. Equally though, it is not enough to point to evidence that might have been sufficient to preclude a finding of guilt beyond reasonable doubt: Dansie at [37].

31. In Garay v The Queen (No 3) [2023] ACTCA 2 (Garay), McCallum J (with whom Collier J agreed) dealt with the application of M in cases where the trial proceeds by judge alone, stating at [13]-[15] (emphasis added): 13. In Filippou [v The Queen [2015] HCA 29; 256 CLR 47], an appeal from New South Wales, the High Court held that the approach is the same after a trial by judge alone: at [11]–[12] (French CJ, Bell, Keane and Nettle JJ); [81]-[82] (Gageler J). That conclusion was based on the language of the relevant New South Wales provision, s 133(1) of the Criminal Procedure Act 1986 (NSW), particularly the fact that the section equates a judge’s finding of guilt with the verdict of a jury “for all purposes”. As already noted, s 68C(1) of the Supreme Court Act is in substantially the same terms. It may accordingly be taken that the test in M applies equally to a finding of guilt by a judge in the Australian Capital Territory. 14. The question for the appellate court is one of fact. It is not to be confused with the question of law whether, taken at its highest, the evidence can support the verdict. As explained in M, it is a question of fact “which the court must decide by making its own independent assessment of the evidence”: at 492 [6]. In Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113], the question was framed as being 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.” (Emphasis in original.) However, the High Court has since clarified that the question so framed is not to be understood to qualify the enduring principles stated in M: see Pell v The Queen [2020] HCA 12; 268 CLR 123 at [43]– [45]; Dansie v The Queen [2022] HCA 25; 96 ALJR 728 at [13]. To say that a jury “must have had a doubt” is another way of saying that it was “not reasonably open” to the jury to be satisfied beyond reasonable doubt of the commission of the offence: Pell at [45]. 15. Finally, it is well settled that, in determining that question, account must be taken of the advantage which a jury has in seeing and hearing the evidence: M at 494 [8]. In Filippou, the High Court treated that principle as being of equal application in an appeal from a finding of guilt by a judge: at [12] (French CJ, Bell, Keane and Nettle JJ); [83] (Gageler J). Despite this well-established principle, appellate courts are repeatedly invited to place more faith in their own logic and intellect than to give effect to the acknowledged advantage of being immersed in the atmosphere of the trial. ...

32. The significance of the emphasised words is that they encapsulate the approach to be taken here. The above extract referred to Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113]. There, Hayne J (Gleeson CJ and Heydon J agreeing) stated that 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 (beyond reasonable doubt). The same point was made in Warne v The King [2023] ACTCA 1; 374 FLR 311, where, having similarly referred to the test as articulated in M, the court stated (relevantly) at [29]-[30] (emphasis added): 29. ... the role of the Court in dealing with this ground of appeal is not limited to considering whether there was evidence capable of satisfying a jury of the appellant’s guilt. The Court must conduct its own independent review of the evidence and consider whether it entertains a reasonable doubt as to his guilt. However, the Court will not act on its own view that there exists reasonable doubt if its disagreement with the jury can be explained by the jury having had the advantage of seeing and hearing the witnesses during the trial. 30. To put the point another way, success for the appellant on this ground involves a subjective event (the Court has a reasonable doubt) from which a normative proposition (the jury should have had the same doubt) must be established (cf R v Bragias [2016] NSWCCA 219, [5], [8] (McCallum J)). Proceeding from one to the other, in the light of M, involves excluding the advantage enjoyed by the jury as an explanation for it not having had the doubt entertained by the Court. That will usually be achieved if (as it was put in M) the evidence as it appears from the record “contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force”.

33. This last emphasised passage is reflected in Pell v The Queen [2020] HCA 12; 268 CLR 123, where the High Court stated (at [39]) that the court “proceeds on the assumption that the evidence of the complainant was assessed by the [fact-finder] to be credible and reliable”, going on to say in the same paragraph: The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.

34. Here, the factfinder was a magistrate, not a jury. The significance of this was explained by McCallum CJ in Garay at [27] (emphasis added): The point is that care must be taken in applying principles concerning the approach taken in an appeal from the verdict of a jury to an appeal from a finding of guilt by a judge. As established by the decision of the High Court in Filippou, the question for each kind of ground of appeal is the same, whether the appeal follows a trial by judge or by jury. However, in an appeal following a trial by judge alone, to the extent that a ground of appeal is capable of being informed by the judge’s reasons, the approach might be different. A helpful analysis of the ways in which a different approach might be taken according to the issues raised on appeal is provided in the separate judgment of Gageler J in Filippou at [83] where his Honour acknowledged that a court of appeal might, in a proper case, adopt unchallenged intermediate findings of fact of the trial judge, without need for independent assessment, whereas in other cases the court will have to undertake a full independent assessment of the evidence without regard to the trial judge’s reasons.

35. On an appeal where an unreasonable verdict is in issue, the parties should identify the evidence that the appellate court must review and assess and the features of that evidence that support their respective cases on appeal: The King v ZT [2025] HCA 9; 281 CLR 137 at [11].

36. The second aspect of the complaint focuses on the charges as particularised, and in that way, involves a nuance to the complaint of unreasonable verdict in this case. It is uncontroversial that the prosecution needs to establish each element of the charge but does not have to establish every fact supporting each element.

37. However, the charge itself must identify the essential factual ingredients of the actual offence, described as the “material particulars”: see John L. Pty Ltd v Attorney-General (NSW) [1987] HCA 42; 163 CLR 508 at 519-520 and the authorities there-cited.

38. As articulated in Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; 239 CLR 531 at [26]: The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge.

39. As discussed with counsel during the hearing, fundamentally that requirement arises as a matter of procedural fairness. In HT v The Queen [2019] HCA 40; 269 CLR 403, the plurality stated at [17]-[18] (citations omitted): 17. It is a fundamental principle of our system of justice that all courts, whether superior or inferior, are obliged to accord procedural fairness to parties to a proceeding. This obligation requires not only that courts be open and judges impartial but that the person against whom a claim or charge is made be given a reasonable opportunity of being heard, which is to say appearing and presenting his or her case. In an adversarial system it is assumed, as a general rule, that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it. A party can only be in a position to put his or her case if the party is able to test and respond to the evidence on which an order is sought to be made. 18. Whilst stated as principles or rules deriving from the more general principle of procedural fairness, these rules do not have immutably fixed content. The content of procedural fairness may vary according to the circumstances of particular cases. Procedural fairness is not an abstract concept; rather, it is essentially practical. The concern of the law is the avoidance of practical injustice. It is that consideration which guides a court in deciding whether its procedures should be adapted to meet difficulties which may arise.

40. With that understanding of what it means for a finding to be “reasonably open” (as a question of fact) and what material particulars are required, the court turns to an independent assessment of the evidence.

On an independent assessment, the finding on the assault charge was reasonably open

41. The complaint about the assault charge centred on the element of the infliction of force on the complainant. The material particulars with regard to the force were that she was intentionally thrown or pushed with force. I have found that matters such as whether the complainant’s feet left the ground, or how far the complainant travelled, are plainly in the category of inessential facts.

42. The independent assessment includes a review of all the evidence and the parties assisted in summarising the evidence in their submissions. Here, there was body worn camera footage on the day of the incident. The appellant did not rely upon it because he did not need to. He said the points he wanted to make can be made on the paper. I have accepted that position and not gone behind it. Otherwise, I have not set out the full suite of evidence in the court below in these reasons. That does not mean that it was not read, viewed or assessed. It is simply that in this case, the reliability and inherent believability of the complainant’s evidence was the critical evidence for the appeal.

The complainant’s evidence

43. Dealing with the evidentiary problems identified requires close consideration of the evidence given by the complainant. The complainant’s evidence was that the appellant came home at around 11:00am to find the complainant at home when she should have been at school. The complainant told the appellant she had broken up with her boyfriend the night before and felt sick. The appellant did not believe her. As a result of the complainant’s previous history of mental health deterioration, the appellant was concerned that the complainant was self-harming at home. An altercation started between them. She was in the “movie room” in her house and went to her bedroom crying, asking to be left alone. The appellant followed her. She then locked herself in the bathroom. The appellant was yelling at her through the door and kicking the door, while the complainant was telling him to go away. Her evidence was: … he was just trying to kick the door, but he found something to open the door. He opened the door and grabbed me by the waist and then I started running out the door. He grabbed me again and – and then he started calling me names. And then he started to get really physical.

44. In respect of the first charge, the complainant confirmed that when the appellant grabbed her by the waist with two hands, she was running out the door. She felt “pretty uncomfortable”. She estimated that the appellant had his hands around her waist for about ten seconds.

45. She proceeded: And then he brang me back and then he started yelling at me. … He threw me, like, across the room into the wall. And then he started yelling at me again, and he pushed me back into my room and then started hitting me again, and then choking me.

46. The complainant expanded upon the yelling, stating that the appellant said, “You need help, you’re crazy”.

47. When asked to describe how the appellant threw the complainant into the wall, the complainant said: he, like, picked me up by the waist and then threw me into the wall.

48. She was facing him at the time, and she said her feet left the ground. She was asked to state how far away from the wall she was. She estimated two metres.

49. She was asked “with what sort of force did you hit the wall?” and she said, “what do you mean by that?” and later answered, “he just pushed me with a lot of force into the wall”.

50. In relation to the choking charge, the complainant’s evidence was that the appellant “got on top of me and started choking me with a lot of force”. She said that he choked her around the neck with two hands for about 30 seconds.

51. The complainant said that when the appellant choked her, he said, “I want to kill you” and “Just die. Die.”

52. With regard to the positioning of the appellant and complainant at the time of this conduct, the complainant said: (a) She was “lying on the bed with my knees up, and he was on top of me”. (b) She could not straighten out her legs because the appellant was on top of her. (c) She felt she could not breathe. It was “really tight” and was “hurting a lot”.

53. She had no injuries or bruising arising from that conduct. That was confirmed upon examination in the emergency department after the complainant was taken to hospital.

54. In other evidence relevant to this ground, the complainant said that while she was not sure exactly when the appellant called the ambulance, it was before the conduct constituting the charges and she thought it was before she went into the bathroom.

55. The complainant was not cross-examined.

Unsworn evidence of appellant

56. In addition to comments made when the police attended the home, the appellant participated in a police interview three days after the incidents that were the subject of these proceedings occurred. His evidence was that he and the complainant “just had a bit of an argument”. He had arrived home from work at lunchtime and found his daughter had not gone to school that day. He spoke to the complainant’s grandmother. He then indicated to the complainant, “Look. I’m gonna call for an ambulance because you seriously need help.”

57. The appellant said that the complainant then went into hysterics and that he was telling her to calm down, that she needed help and just to wait for the ambulance.

58. He then said: … So basically she was just pushing me. I was pushing her and I didn’t try and strangle her. Just when I pushed her to the bed my hands sort of were up around her head. But not intent – not to strangle her or anything. Just to settle down – you know. Like, ‘You need help.’ And – yep. … The ambos called the police, and they came instead. And that’s – that’s where we went. That’s where it ended up.

59. The appellant then discussed how he was not there to hurt her or cause any grief. He would never hurt his kids. The complainant had a lot of issues for which they had been trying to get help and it was a slow process. The complainant had been self-harming and it was affecting his other children. He then said: … and I just sort of had enough – you know. But I had no intention to hurt her. It was just to keep her at home to get help. … To go to hospital. That’s it. … I understand she thinks I’m very aggressive and all that. But as a parent it – we all – we’ve all had our parents scream at us and have goes at us and all that. Try and get us back into line – you know. If I wanted to hurt her, I would’ve hurt her big time. But I wouldn’t do that to my own child. …

60. The appellant was then asked this question: All right. And so after you’ve called ACTAS [the complainant] tried to run away from the house. You guys pushed and shoved, both of you. And at some point, your hands ended up around her head and some contact and you’d had to settle her down?

61. The appellant answered: It was more to just say, ‘Look. Just be calm. You’re gonna get help. Stop – stop carrying on.’ You know. … I had no intentions to hurt her. … … in hindsight I understand we should’ve let – you should – it’s sad to say but you’ve gotta let the kid run. But what happens if they harm themselves – you know? …

62. The appellant then described the complainant as being in hysterics, that there was not a lot of sense and that she was saying that she did not need help. He continued: … basically she just tried to run away from the house. And I said to her, ‘Right. We’ll call the ambulance. We’ve got to wait till they get here.’ And then she – she’s the one who got aggressive with me. Started kicking and pushing me.

63. The appellant was asked how it happened that the complainant was pushing and shoving him if she was trying to leave. The appellant answered: Well, she was – she was pushing me to leave and I was pushing her back to say, ‘You will stay here … at home until you get help. Until the ambulance arrives.’

64. He estimated that she was pushing him pretty hard, probably at least seven or eight out of ten. He said he was “twice her size” and was probably pushing the complainant only two or three out of ten. He then said: I know it might sound bad. But the only thing I was – I was trying to keep her at home so she didn’t run off and cause herself harm. …

65. The appellant estimated that there was “probably half an hour of pushing and shoving”.

66. He was asked to go into more depth and tell the police officer what happened and where. He described talking to her and speaking to the grandmother and telling the grandmother: I’m struggling with [the complainant] and she’s got – she’s not listening. She – she’s bloody in her own world – you know.

67. He then said that they had been talking “a little bit aggressively but no pushing”. It was only after he said that the ambulance was coming that the complainant went into the “red zone.” He continued: … And we just got into an argument and there was pushing and shoving you know. But if I wanted to strangle her and hurt her, I would’ve done. But I didn’t do it.

68. He said the pushing and shoving occurred in the downstairs area near the front door. He then said: … We eventually ended up in her room and I was standing in that room next – next to where you guys come through the front door. … And I said to her, ‘You’re not leaving until the ambos get here. So you’ll just wait in your room.’ And she was pretty upset and everything and she was waiting in her room. … But… I didn’t punch her. I didn’t physically – she’s saying that I strangled her. I just pushed her to the – to her bed when she was kicking and – and being aggressive with me. … She was kicking me. Saying, ‘I wanna leave. I wanna leave.’ And I’m saying, ‘No. You’re gonna wait for the ambulance.’ … ‘I – I seriously wanna get you help.’ And she, um – and I was – just pushed her to the bed and – and put my hand on her face and said, ‘Listen. You need serious help.’ And she went into - she was in hysterics. But I was trying to calm her down.

69. The appellant was then asked whether he was holding her down by her face and he said: Oh, look. I – I pushed her to the bed and said, ‘Look. Settle down.’ Because she was – you know. Carrying on in – in hysterics. … and probably for two seconds – you know. I said – just trying to calm her down – you know. … and she was still kicking me and all that at that point.

70. The appellant was then asked to estimate the pressure of the push and he said four or five out of ten. He then said: It was – would’ve only been for maximum five seconds to say, ‘Just settle down. You need help’ – you know.

71. The appellant then discussed how he tried to discipline the complainant and she was trying to “get under my skin”. He was asked whether anything that happened could have been construed as strangling and he said: Before the pushing and shoving she – I know she was out of breath.

72. He was asked whether at any point he hit or kicked the complainant and he said: It was more just grabbing and pushing.

73. The appellant was asked whether the complainant locked herself in the bathroom and he agreed she had. He said: Well, she – I could hear she was fiddling around with the window and she was trying to get out through the window. And I – I know how to get into the bathroom then when it’s locked. Um, and – and I said to her, like, ‘You gotta wait for the ambo.’ And she basically just trying to stay – you know. But I understand you can’t do that.

74. There was some discussion about the appellant’s understanding of the line to draw and what was reasonable. The appellant was asked whether it was reasonable to push the complainant into a room and force her into a room and stop her from leaving. He answered: I understand it’s not the right thing to do. … But I’m – in her situation I’m worried about her hurting herself. … I’ve got no intention of harming the child. I – I’m trying to help the child. Honestly. … I guess it got to a point where I’ve had enough – you know. As a parent.

75. The police interviewer later said that what they were attempting to figure out was “what’s reasonable in the circumstance” and what was the way it was handled by the appellant. The interviewer said: … is what she’s telling us the truth? Is it what you’re telling us? Where does it all come together? That’s what we’re trying to put together. Not who’s a bad guy.

76. The appellant answered: Well… we’ve both got our stories and the truth’s in the middle. Consideration of the appellant’s complaints on Grounds 1 and 2

77. I do not accept the appellant’s argument that because of the description of the evidence in opening, the court below was required to consider whether those additional particulars had been proved beyond reasonable doubt, nor the further submission that they were not capable of being so proved.

78. The magistrate’s finding was that there was an infliction of force by picking the complainant up in a way that could be by her waist, and throwing the complainant in a way that she, “to some degree, landed against the wall”. This was within the scope of the case identified by the prosecution on opening. Such conduct met the elements of the offence set out above. That is, the magistrate found beyond reasonable doubt that the mechanism of the force had occurred, being the push or the throw. That was an intentional act and there was no consent to it.

79. The prosecution did not need to establish beyond reasonable doubt that the appellant was lifted off the ground, nor that the throw into a wall carried the complainant two metres away. As they were not material particulars of the charge, they did not require proof to the criminal standard.

80. As to whether the finding was reasonably open on the evidence, the court assumes that the evidence of the complainant was assessed by the magistrate to be credible and reliable. Having reviewed the evidence in its entirety, I do not accept that the complainant’s account was simply unbelievable. I also do not accept that her account was unreliable in material respects or that there were inconsistencies of such a nature as to render the magistrate’s assessment erroneous. It is far from clear that there were any internal inconsistencies in the complainant’s evidence.

81. Dissecting the complainant’s account and analysing the words spoken in isolation from their context with a view to impugning credit or reliability in this case is not the proper approach. It might reveal error in other cases, but the appellant sought to place too much significance on the difference between a throw and a push, and on the distance the complainant said she travelled, as being discrepancies or exaggerations that resulted in an unbelievable or unreliable account.

82. The context of what was occurring was significant. This was a teenage girl interacting with her father and both were in a heightened emotional state. The appellant’s own evidence was that there was probably half an hour of pushing and shoving. Whether the appellant felt worried or frustrated or angry or a mix of all those emotions, the point is that these were not calm individuals. The complainant had locked herself in a bathroom. The appellant had known how to open the door. She did not want to go to the hospital. He had had enough of her dodging medical appointments targeting her mental health. At the time he grabbed her, she was attempting to escape interacting with him and going to the hospital. She was not casually passing him in the corridor. The incident described by the complainant commenced with the complainant already in motion, running out a bathroom door. That is, she already had momentum at the point that the appellant was trying to stop her from running away and avoiding the ambulance, and the appellant brought her back by grabbing her twice.

83. The complainant was unsure what the question about force meant. The complainant felt that she was pushed with a lot of force into the wall. She attributed that force to the appellant’s conduct, when in part it may have been attributable to other things, such as the size disparity or her own momentum in resisting the appellant. That does not mean the complainant’s account was inherently unreliable or exaggerated. Nor does it taint her credibility to the point where the magistrate should have entertained a reasonable doubt about whether the act occurred at all. The magistrate’s finding that the appellant’s conduct was not done particularly forcefully reflected a common-sense approach to the evidence, having regard to the circumstances in which the conduct occurred.

84. Further, I do not accept the appellant’s submission that the complainant’s account about being picked up and thrown across the room into a wall two metres away was unbelievable. First, that was not her evidence in terms, and I have already dealt with the difficulties associated with divorcing words from context.

85. Second, that submission illustrates the danger in taking the words of a lay person as to what occurred and giving lawyerly significance to the particular words used. In saying that the appellant threw her across the room, the complainant did not say that her feet left the ground for the entire distance that she travelled. She was describing the entire conduct from the grabbing motion around her waist, her body being lifted so that she did not have her footing, and the movement of her body across the room to the point where she connected with the wall. Dissecting the point at which a throw became a push in order to assess the believability of a 13-year-old complainant’s evidence as to the force of the conduct was not required for that element to be satisfied beyond reasonable doubt.

86. I do not accept that it is inherently unbelievable that the complainant was grabbed around the waist in a way that she felt her feet leave the ground at some point. Among the evidence was the appellant’s observation that he was twice the complainant’s size. It is further not beyond belief that the complainant travelled two metres as a result of the intervention of the appellant. A person who loses their footing in an altercation, whether their feet leave the ground initially or not, may well travel such a distance. However, assuming that the complainant was mistaken about her estimate of the distance and the wall was only one metre away rather than two metres, that is not an exaggeration or inconsistency that should have caused the magistrate to doubt the key aspects of the complainant’s account, either on its own or in combination with the other matters the subject of complaint.

87. The appellant made an additional submission that there were no injuries or marks consistent with such a forceful and violent act, evidence which he submitted indicated that the complainant’s account was unbelievable and embellished over time. Again, that argument puts a significance on the words “pick up” and “throw” that implies a greater degree of violence than the general way in which those words were used by the complainant.

88. Significantly, the appellant chose not to cross-examine the complainant on any perceived inconsistencies, or her inherent believability. While there may have been personal and/or forensic reasons for that choice, it makes it difficult to submit on appeal that the complainant’s evidence was unbelievable to the extent that the magistrate should have had a reasonable doubt about the essential facts. The appellant’s perceived inconsistencies in the complainant’s evidence were not readily discernible. The potential application of the Browne v Dunn rule in criminal proceedings is discussed separately under Ground 5. For the present grounds under consideration, it suffices to find that the subtleties of force involved in the conduct described were not teased out to a level that would provide any foundation for the complaint the appellant now seeks to make.

89. The magistrate was plainly cognisant of the difficulty in that aspect of the complainant’s evidence, as his Honour stated: … broadly speaking, her evidence on the two days [was] consistent, although I do accept that what she said about being thrown was not as clear or direct or even described on the first occasion.

90. This demonstrates that the magistrate well-appreciated the matters that the appellant now raises as inadequacies in the complainant’s evidence. Having weighed those matters, his Honour nevertheless agreed that there were “no obvious signs of exaggeration or embellishment in the way [the complainant] gave her evidence”. That weighing of the quality of the evidence with regard to being thrown is manifest in the ultimate finding that the appellant’s conduct was not particularly forceful. That finding was reasonably open on the complainant’s evidence and is consistent with the other evidence about the lack of injury to the complainant.

91. Moreover, to my mind, focussing on the degree of force with which the complainant hit the wall was a distraction. The intentional physical grabbing of the complainant, and the movement of the complainant by the appellant, by way of a push or throw which involved lifting her body in some way without her consent, inherently involves the application of force. Those facts alone established the offence as particularised beyond reasonable doubt. That is reflected in the magistrate’s specific findings with regard to the elements of the offence (see [14] above) which include the finding beyond reasonable doubt “that in relation to the common assault charge, the defendant inflicted force upon his daughter by lifting her up”.

92. The magistrate rejected the unsworn evidence of the appellant. Ground 5 has dealt with a separate technical error in relation to that reasoning. However, reviewing the evidence independently, it was well open to the magistrate to reject the appellant’s evidence to the extent that it was inconsistent with the complainant’s account. As the magistrate found, it was indeed vague and general in answer to specific questions about the conduct that happened. It can be seen that the appellant consistently digressed to raising the complainant’s problems and emphasising he had no intention to hurt the complainant, and how he should have let her run rather than try to stop her from leaving.

93. The appellant agreed that there was pushing and shoving, that the complainant was trying to run away from the house and that he was trying to stop her. He said, “she was pushing me to leave and I was pushing her back”. He accepted he let himself into the bathroom after the complainant had locked the door.

94. He said that he pushed the complainant onto her bed and that “when I pushed her to the bed my hands sort of were up around her head”. That is, in the appellant’s own words, he applied pressure to the complainant, with his hands, at a point on her body where his hands “sort of were up around” the complainant’s head. Clearly, the appellant did not want to say the word “neck”. It is difficult to think that his description of his hands pushing the complainant sort of around her head could mean anything else.

95. He said he put his hand on the complainant’s face and spoke to her saying “Listen, you need serious help.” He estimated that that “push” was for probably two to five seconds. He described the complainant kicking and saying, “I wanna leave. I wanna leave”.

96. His view of his conduct was that he was only trying to help the complainant as a worried and frustrated parent and that he was trying to calm her down. That did not sit at all well with the other aspects of his evidence – his free descriptions of him having “had enough”, of letting himself into the bathroom when she had locked the door, of his grabbing, pushing, and shoving her over a period of time to prevent her from leaving the house, of his pushing her to the bed with his hands “sort of” up around her head while the complainant was expressly wanting to leave her bedroom and kicking him, and tellingly that “we’ve all had our parents scream at us” trying to bring us back into line. The effect of that evidence is that the appellant was in an agitated state. The complainant’s evidence that she could feel the appellant’s spit on her face when he was yelling at her as she was being pushed on the bed had the distinct ring of truth.

97. Indeed, much of the appellant’s account during the interview was, at a broad level, supportive of the complainant’s detailed and cogent account. The omission of the specific details of each offence was consistently evasive, with the appellant’s focus instead on his lack of any intention to hurt or strangle the complainant. But many of the details recalled by the appellant were in fact consistent with what the complainant said occurred.

98. The inconsistency of the appellant’s account arose from things he did not say and from him saying that he did not strangle the appellant. Even that evidence was not squarely inconsistent with a choke. From what the appellant said, he was meaning that he was not attempting to stop the complainant from breathing, but he was very physically trying to stop the complainant from leaving her bedroom and one of the mechanisms he used was to push her to the bed, pushing with his hands sort of up around her head, with that “push” lasting two to five seconds.

99. In short, the appellant has not demonstrated that the evidence was incapable of establishing the assault as particularised beyond reasonable doubt. On an independent review of the evidence, there was no inadequacy giving rise to a doubt that the complainant’s account was credible or reliable in respect of the essential elements of the charge. I do not accept the magistrate ought to have entertained a reasonable doubt about the complainant’s evidence as to the conduct constituting the assault charge. For completeness, that finding includes the assessment of the evidence with regard to the choke offence as part of the overall assessment of the complainant’s credibility, although this is discussed next.

On an independent assessment, the finding on the choking charge was reasonably open

100. The appellant’s complaint was that the magistrate found the offence proven on a basis different to how the prosecution opened, and inconsistent with the description given by the complainant. This demonstrates that the magistrate must have had a doubt about the reliability of the complainant’s description of the choking.

101. I have concluded that the quality and sufficiency of the evidence was capable of establishing the choke offence as particularised and that the magistrate’s finding was reasonably open. The magistrate’s finding and the evidence about the choke has been discussed above.

102. I agree with the submissions of the respondent, in that the degree of force and duration of the choke were inessential facts. The court below was not required to make a finding as to the degree of force used or the duration of the force because of the definition of “choke”. The essential particulars were the placing of two hands around the complainant’s neck and the application of pressure to any extent. I therefore do not accept that the magistrate recast the case, so as to constitute any unfairness to the appellant.

103. The appellant again placed weight on the lack of injuries or the absence of any marks around the complainant’s neck as being indicative of the unbelievability of the complainant’s version of events. The complainant described the force as being really tight and with the appellant saying to her at the time “just die” and “I want to kill you”. It was argued that those statements would have been reflected in the level of force used and the lack of marks or even any redness was inconsistent with that version of events being true.

104. The appellant further argued that he called the ambulance before the alleged choking incident because he was worried about his daughter self-harming. The complainant’s account of his behaviour was simply unbelievable in those circumstances.

105. I do not accept those submissions. As submitted by the respondent, it was not incumbent upon the magistrate to accept every aspect of the complainant’s account beyond reasonable doubt, but only of the facts establishing the elements of the charge.

106. The relevant part of the magistrate’s finding (extracted again here for convenience) was: And I also make a finding on the same day, he placed his hands around her neck while she was laying on the bed. Although I do not make any finding as to the degree to which that occurred. And I do so noting that the complainant says it occurred for some 30 seconds, but time is notoriously uncertain when things are happening which are acute and I note she said that she could not breathe at a point in time but in circumstances where there is simply no evidence or no marks visible, it’s difficult for me to be confident that a force is applied to a significant degree, to that degree where there are no marks.

107. Two points are revealed in this reasoning. First, it was clear that the magistrate was not persuaded beyond reasonable doubt of the complainant’s account of the degree of force or its duration. Second, the magistrate appreciated that he was not accepting the entirety of the complainant’s evidence and explained why it was difficult for him to accept those aspects of the complainant’s account, saying: “time is notoriously uncertain when things are happening which are acute.” It is implicit in the explanation why his non-acceptance of those inessential facts did not cast a doubt on more critical aspects of the account. Again, the reasoning on that aspect reflected common sense.

108. Importantly however, not accepting to the criminal standard that force was applied to the point where the complainant could not breathe, or that the conduct occurred for 30 seconds, does not mean that the magistrate must have entertained a reasonable doubt about whether the act occurred at all. It does not follow from expressing a reasonable doubt about those matters that the magistrate could not or should not have believed the complainant’s evidence that the appellant placed his hands around her neck and applied some force or had a reasonable doubt about that evidence.

109. Further, with regard to the competing evidence that the appellant was worried and called an ambulance, the magistrate appropriately weighed that evidence, as was apparent from this aspect of the reasoning: And the other point I wish to make is that it’s also entirely conceivable that a parent, initially with the best intentions can become upset and take things a bit too far in the heat of the moment.

110. As a matter of law and having independently assessed the quality and sufficiency of the evidence, including that given by the appellant discussed above in relation to this aspect, the findings made by the magistrate were reasonably open, for the reasons his Honour gave (save as to the matter discussed under Ground 5). Accordingly, Grounds 1 and 2 have not been established.

Ground 3: Did the court below err in finding, without expert evidence, that force can be applied to the neck and not leave a mark?

111. The finding that is the subject of complaint under Ground 3 was as follows: … it’s entirely conceivable … that force can be applied to the neck and not leave a mark. There is no expert evidence suggesting that common experience is implausible.

112. The appellant’s arguments may be summarised as follows: (a) The evidence was that considerable and continuous force was applied by an adult man to a young girl’s neck. By removing that detail, the magistrate ignored the evidence of the central witness. Focusing on “force” in the abstract, as opposed to the force actually described by the complainant, was a distraction from the determination of the facts in the case. (b) The magistrate’s comment that no expert evidence was led to suggest that what was said to be common experience was implausible reversed the onus of proof. The prosecution ought to have called expert evidence to establish that force can be applied without leaving a mark, and more specifically, that the force described by the complainant could be applied without leaving a mark. It was not for the appellant to prove the opposite. (c) Without expert evidence, the magistrate was wrong to find that force can be applied to the neck and not leave a mark. Referring to a small amount of force not leaving a mark may be common knowledge, but that was irrelevant given the charges as particularised and the description provided by the complainant. (d) If the magistrate was invoking s 144 of the Evidence Act 2011 (ACT) (namely that proof is not required about knowledge that is not reasonably open to question and is common knowledge in the locality), then:

1․ The knowledge sought to be relied upon was not something that was “not reasonably open to question”, and

2․ The magistrate was required to give the parties an opportunity to be heard on that issue.

113. Part of the appellant’s submissions with regard to this ground were premised on arguments that I have already rejected in dealing with Grounds 1 and 2 above. The magistrate’s reasoning must be viewed in the context of the facts that were ultimately found by the magistrate. His Honour did not ignore the complainant’s evidence. He accepted it, but not to the extent that was perceived by the complainant.

114. The magistrate’s stated point was really directed to weighing and reconciling the evidence of the lack of any marks on the appellant’s neck. His Honour was in part addressing what the appellant said was the relevant question, being whether the force being described by the complainant could not leave a mark. The point was that it was conceivable that there may be pressure applied without leaving a mark on the neck. That must surely fall within common life experience that not all acts of pressure to body parts leave marks that will be visible some 20 minutes later (being the approximate period after the time the complainant said the incident occurred that the police observed the complainant’s neck not to have any visible sign of trauma). As an abstract observation about pressure or force, such a statement did not need to be the subject of expert evidence.

115. The appellant argued that this was backwards reasoning, and that the proper approach was not to read the intermediate finding in light of the ultimate finding. However, I think that misunderstands this aspect and it is helpful here to return to the importance of examining reasons in their context. The stage at which the magistrate made this observation was as “a final point” before his Honour turned to deal with his precise findings. When that is understood, it can be seen that the context in which his Honour was discussing force or pressure that can be applied to the neck was part of his Honour’s reasoning for accepting the complainant’s evidence beyond reasonable doubt only insofar as it established that pressure was applied, as opposed to pressure that was forceful enough to stop the complainant breathing.

116. The further statement that there was no expert evidence suggesting that what was described as “common experience” was implausible was perhaps unnecessary, but it would be unfair to characterise what was said there as mistakenly reversing the onus. It is clear when the full reasons are taken into account that the magistrate’s findings in respect of the choke were based on a proper understanding and application of the onus of proof, because his Honour expressly referred to it and substantively applied it.

117. For those reasons, Ground 3 is not established.

Ground 4: Did the court below err in misstating the complaint evidence sent via Snapchat?

118. This complaint centres on the following parts of the magistrate’s reasons: There was also evidence of a complaint made by the complainant to her friend … . [The friend] describes, on the day of the incident, receiving a number of Snapchat messages from the complainant; including one that she says she had been told that the complainant’s father had held her down on her bed and had used his hands around her neck. … that’s obviously something less than choking but it does describe the application of hands to her neck by the complainant’s father.

119. The magistrate later said: So in summary, we have a very clear explanation of what occurred by the complainant on two occasions as well as contemporaneous [complaint] on the day to some degree to her friend. Her complaints are essentially consistent although not identical on each occasion.

120. The appellant submitted that there was uncertainty as to the timing of the disclosures, including whether they were contemporaneous, sent on the same day, or made to the friend in later conversations.

121. The appellant said that the description of the timing of the messages was in error and that this evidence was of limited value. Further, the magistrate did not give himself a direction about the use of complaint evidence, to the following effect: Just because a person says something on more than one occasion does not mean that what is said is necessarily true or reliable. A false or inaccurate statement does not become more reliable just because it is repeated.

122. I do not accept there was any factual error or misstatement of the evidence. The complainant’s friend provided a statement about Snapchat voice messages that were received from the complainant on 16 May 2023. Clarification was provided under cross-examination to the effect that some were sent before the appellant took the complainant’s phone from her on 16 May 2023, and some were sent after the phone was returned to her by police on the same day. The final communication from the friend to the complainant was that “she should stay and talk to the ambulance or the police because they would help her”, which confirms that the entirety of the communications between the pair occurred on the day of the incident. Whatever the content of the messages, the timing of them occurred contemporaneously, as the magistrate found.

123. I do accept that the direction as to complaint evidence was not expressly recorded in the magistrate’s reasons. I do not accept that the proceeding miscarried as a result of that omission for a combination of reasons:

(a) First, I have taken into account that this was a highly experienced magistrate, and it can be assumed that awareness of the potential uses and limitations of complaint evidence was part of the skill set his Honour brought to bear on this case.

(b) Second, no party sought such a direction. The parties themselves appear to have assumed that the experienced magistrate knew how to treat complaint evidence.

(c) Third, and of more critical significance, is that the magistrate’s use of the complaint evidence was demonstrably consistent with any self-direction that would have been given. From what the magistrate said, it is clear that his Honour did apply an appropriate degree of caution to the complaint evidence as to what was said and when, with a view to determining whether the report to the friend should be accepted as consistent with the truth of the evidence given by the complainant. For example, his Honour noted that what was reported was that the appellant had his hands around the complainant’s neck and that does not constitute choking (as there was no reference to pressure being applied).

124. In these circumstances, the magistrate not warning himself that “just because something was said on more than one occasion does not make it true” was not best practice, but in the absence of any such direction being sought and having regard to the nature of the evidence and the way it was taken into account, the lack of a formal statement to that effect was properly to be viewed as being a product of the exigencies of the workload in the Magistrates Court, rather than any actual failure or misapplication of legal principle. Accordingly, Ground 4 is not established.

Ground 5: Did the court below misapply the rule in Browne v Dunn?

125. This complaint arises out of the fact that the appellant’s version of events, which included denials of the conduct the subject of the charges, was not put to the complainant, because she was not cross-examined. The issue is about how the magistrate took that into account. I have found that: (a) There was no error with regard to the application of the rule insofar as the complainant’s evidence was concerned;

(b) However, the magistrate was in error to reduce the weight of the appellant’s evidence on the basis that it was not put to the complainant; and

(c) While there were other reasons why the magistrate found the appellant’s evidence to be unsatisfactory, the ultimate rejection of the appellant’s account in its entirety was tainted by the error in applying Browne v Dunn to the appellant’s account.

126. I have broken the analysis down into explaining the rule in question, setting out the magistrate’s reasoning on the point and then examining the two ways in which it was applied.

The rule in Browne v Dunn

127. The rule that is the subject of dispute was explained in MWJ v The Queen [2005] HCA 74; 80 ALJR 329 (MWJ) by Gummow, Kirby and Callinan JJ relevantly at [38]-[39]: 38. … The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person's witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party's or a witness' credit. 39. One corollary of the rule is that judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with it. A further corollary of the rule is that not only will cross-examination of a witness who can speak to the conduct usually constitute sufficient notice, but also, that any witness whose conduct is to be impugned, should be given an opportunity in the cross-examination to deal with the imputation intended to be made against him or her. …

128. In Hofer v The Queen [2021] HCA 36; 274 CLR 351 (Hofer), Kiefel CJ, Keane and Gleeson JJ stated at [28]: There would seem to be no reason in principle why the requirements of the rule should not be followed in criminal trials. As a general rule, defence counsel should put to witnesses for the Crown for comment any matter of significance which is inconsistent with or contradicts the witness's account and which will be relied upon by the defence.

129. The plurality in that case went on to describe (at [29]-[37]) the difficulties in determining the consequences when the procedural rule is not observed. Relevantly for the reasons under challenge here, at [31] it was stated that an obvious course to be taken is to recall the witness so that the omission can be corrected. Reference was then made to cross-examining the accused as to not only the fact of an omission to cross-examine, but also the reason for the omission. In Hofer, the accused had given evidence which had not been put to a prosecution witness, thereby denying the witness the opportunity to respond to the allegation.

130. Their Honours then stated at [31] (citation omitted, emphasis added): As Gleeson CJ observed in R v Birks, it is one thing for the cross-examiner to point to the unfairness to a witness who has not had the opportunity to comment, it is quite another to suggest that the result of a failure to observe the rule of practice is that a person should not be believed.

131. I will return to those emphasised words in the context of discussing the magistrate’s treatment of the interview given by the appellant.

Magistrate’s reasons

132. The material part of the magistrate’s reasons is as follows (emphasis added): What stands out to me in relation to his version is the lack of precision, even when the details are put to him, there’s really a very generalised response. He also says during those conversations that the truth is somewhere between the two. He also acknowledges very quickly on both occasions that there was pushing and shoving, and that he had applied force in some way in response to being kicked by the complainant. Well, I and I also note that his version of events was not put to the complainant. Now, I think as a matter of fairness, it’s trite to say that the Browne v Dunn rule requires that to be put but does not – well, it invites that to be put probably more precisely and if it’s not put, there are consequences …

133. Pausing there, it can be seen from those reasons that:

(a) The magistrate appreciated that the application of the rule was a matter for consideration; and

(b) Recognising this was a criminal trial, the procedural rule did not require the defendant’s alternative version of events to be put to the complainant, but rather that the appellant had in the circumstances before him been invited to put his version to the complainant.

134. The magistrate’s reasons continue (emphasis added): … and those consequences can be – and perhaps ordinarily should be – as described in that decision of MWJ v The Queen [2005] HCA 74 where at paragraph 16 of those reasons of Chief Justice Gleeson and Justice Heydon was clear, quotes adopted that in circumstances where the allegations are not put or the inconsistences are not put or the different version of events are not put, then that has to be taken into account when assessing the weight to be given in those circumstances to those inconsistencies. And I think, in this case, it needs to be taken into account to assess the weight I place on the defendant’s denials.

135. The emphasised words demonstrate that the magistrate also appreciated:

(a) Consequences may follow where the inconsistencies are not put or the different version of events are not put; and

(b) The ordinary consequence would be that those circumstances would be taken into account when assessing the weight to be given “to those inconsistencies.”

136. The paragraph in MWJ to which the magistrate plainly intended to refer was [18], where Gleeson CJ and Heydon J stated as follows (citations omitted, emphasis added): The principle of fair conduct on the part of an advocate, stated in Browne v Dunn, is an important aspect of the adversarial system of justice. It has been held in England, New South Wales, South Australia, Queensland, and New Zealand, to apply in the administration of criminal justice, which, as well as being accusatorial, is adversarial. Murphy J, in this Court, even applied it to the conduct of an unrepresented accused. However, for reasons explained, for example, in R v Birks, and R v Manunta, it is a principle that may need to be applied with some care when considering the conduct of the defence at criminal trial. Fairness ordinarily requires that if a challenge is to be made to the evidence of a witness, the ground of the challenge be put to the witness in cross-examination. This requirement is accepted, and applied day by day, in criminal trials. However, the consequences of a failure to cross-examine on a certain issue may need to be considered in the light of the nature and course of the proceedings.

137. Gleeson CJ and Heydon J went on to discuss the consequences at [19] (emphasis added): In the present case, there was no obligation on trial counsel for the appellant to question the complainant about whether there had been more than one incident of sexual abuse at Sutcliffe Street, and there was no obligation to seek to have the complainant recalled for that purpose. Why would counsel for the appellant want to run the risk of eliciting further evidence of uncharged criminal acts by her client? That, no doubt, left the trial judge in a difficult position when he came to evaluate a criticism (in final address) of the complainant's credibility based on the supposed (although, in truth, non-existent) inconsistencies. It did not mean that counsel could not put her argument to the judge. As Doyle CJ said, it was a matter to be taken into account in assessing the weight to be given to the supposed inconsistencies. In the event, it was the fact that counsel chose (with reason) to leave the evidence in a state of uncertainty that undermined her submission about inconsistency. That was a forensic choice for counsel to make.

138. Here, the emphasised words draw attention to the reasoning that a defence counsel may make submissions criticising a complainant’s credibility based on perceived inconsistencies, but where a complainant has not been questioned in relation to those inconsistencies, that may have a consequence for the weight to be given to the supposed inconsistencies. The parties’ positions

139. The emphasised words were relied upon by the appellant in this case. The appellant submitted that the principle is not absolute, the consequences needed to be considered and in the circumstances of this case, the lack of cross-examination should not have been taken into account in the way that it was.

140. The respondent argued that this was not a case where the prosecutor agreed that no Browne v Dunn point would be taken. The magistrate applied the principle in the orthodox manner, had regard to the circumstances of the case and applied the principle in a fair and appropriate way.

The magistrate’s approach to Browne v Dunn was not in error with regard to the complainant’s evidence

141. My conclusion with regard to the complainant’s evidence is:

(a) What the magistrate said reveals an understanding of the substance of the principle; and

(b) The choice to apply that principle in forming a view about the weight to be given to the asserted inconsistent evidence insofar as that evidence came from the complainant was a proper application of the principle.

142. To explain that conclusion, it is helpful to also understand what occurred in MWJ and how the High Court assessed what the trial judge did in that case.

143. MWJ was a case where the appellant had been convicted of three offences of sexual misconduct against a complainant who was a child at the time. Although there were a number of inconsistences in the evidence, counsel for the appellant had not cross-examined on those inconsistencies. The trial judge found that it would be unfair to use the inconsistencies as a means of impugning the complainant’s evidence in those circumstances. The point of close consideration was the trial judge’s view that if the appellant wished to impugn the credit of the complainant on the basis of inconsistencies, then those inconsistencies needed to be put to her in accordance with the rule in Browne v Dunn, even conscious that the appellant bore no overall onus (extracted in MWJ at [28]). On appeal to the Court of Criminal Appeal in South Australia, there was a reference to it being open to counsel for the appellant to have the complainant recalled for further cross-examination and that counsel did not choose to do that.

144. The High Court found that the rule in Browne v Dunn should not be applied in a criminal trial without qualification. Gummow, Kirby and Callinan JJ stated at [40] and [41] (emphasis added): 40. Reliance on the rule in Browne v Dunn can be both misplaced and overstated. If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to put a relevant matter in cross-examination, can almost always, especially in ordinary civil litigation, mitigate or cure any difficulties so arising by seeking or offering the recall of the witness to enable the matter to be put. In criminal cases, in many jurisdictions, the salutary practice of excusing witnesses temporarily only, and on the understanding that they must make themselves available to be recalled if necessary at any time before a verdict is given, is adopted. There may be some circumstances in which it could be unfair to permit the recalling of a witness, but in general, subject to the obligation of the prosecution not to split its case, and to present or make available all of the relevant evidence to an accused, the course that we have suggested is one that should be able to be adopted on most occasions without injustice. 41. The obligation of the prosecution to present its whole case in chief and the existence of the unavoidable burden of proof carried by the prosecution are of particular relevance here. Doyle CJ was critical of the appellant for not putting the inconsistency between the complainant and her mother, in turn giving rise to an internal inconsistency in the complainant's account, to the complainant. The criticism does not give due weight to the obligations of the prosecution to which we have referred. It is not for the defence to clear up, or resolve inconsistencies in the case for the prosecution. As soon as the inconsistency emerged, and the trial judge rejected the appellant's objection to the evidence intended to be adduced from the complainant's mother, it was open for the prosecution to offer to tender the complainant for further cross-examination. Had that happened it would then, and only then have been for the appellant, to decide whether to embrace the offer or not. If he had not, then and only then would the criticism that the Court of Criminal Appeal made of his conduct have been valid. The position of an accused who bears no burden of proof in a criminal trial cannot be equated with the position of a defendant in civil proceedings. The rule in Browne v Dunn can no more be applied, or applied without serious qualification, to an accused in a criminal trial than can the not dissimilar rule in Jones v Dunkel. In each case it is necessary to consider the applicability of the rule (if any) having regard to the essential accusatory character of the criminal trial in this country.

145. The emphasised passages are the aspects of the reasoning that I consider have significance for the resolution of this ground of appeal.

146. Here, the prosecutor at trial expressly made the complainant available to be re-called for cross-examination on the second day of the hearing on the basis of the potential application of the rule in Browne v Dunn. In answering a question about whether there was a reason the complainant was in court on the second day of the hearing, the prosecutor said: … there has become this additional reason that, in my submission, in fairness to the complainant, any submission that is to be put in closing as to her account or her reliability or her credibility or anything about the defendant’s version that is to be submitted on in fairness needs to be put to the complainant now. She is able to be recalled.

147. The magistrate explained his understanding of the rule, stating: My understanding, and I’m happy to be corrected, would be this, that is, the Browne v Dunn requirement is a requirement of procedure, and [if] it’s not complied with and that goes to the weight to be applied in the circumstances as opposed to making it impermissible to put a submission.

148. The magistrate then referred to the forensic choices that may need to be weighed, stating that counsel for the appellant… … is an experienced practitioner. He is obviously weighing up a number of considerations, including the relationship between the father and the daughter.

149. Counsel for the appellant was then heard on the issue. His view was that he relied completely on the brief of evidence provided by the prosecution (which included the appellant’s statements), and that it was a matter of the weight that might attach to the complainant’s interview or the statements given by the appellant. He submitted that he did not have to comply with the rule in Browne v Dunn.

150. The magistrate then indicated that he thought the rule would still apply, but stated: But I am also cognisant that there may be other reasons why there is a reluctance to challenge the complainant.

151. The magistrate’s findings and reasoning above should be viewed in the context of those exchanges. While what occurs during a hearing is not a substitute for reasons, when reasons are given on the issue, they can be informed by what occurred during the hearing, particularly as the exchange about how to approach the rule in Browne v Dunn occurred on the same day that the magistrate delivered his verdict.

152. Here, the magistrate’s reasons show that he did not automatically apply this procedural rule. He gave consideration to its application, applied MWJ at [18]-[19] and decided that it was appropriate to take the lack of cross-examination of the complainant into account in the circumstances of this case in determining the weight to be given to the evidence that the appellant considered to be inconsistent. I am not persuaded that approach was inappropriate.

153. To the extent that the defence intended to submit that the appellant’s evidence in his interview with police was inconsistent with that of the complainant and that she ought not to be believed because of that inconsistency, then that should have been put to her. Where the defence’s submissions relied on inconsistencies that were perceived by the appellant within the complainant’s own evidence, again, if they were not readily apparent (and I have found that they were not at [80] above) then the rule in aid of fairness applied.

154. Contrary to the appellant’s submission, the magistrate’s reasoning on this point demonstrated an understanding of the rule, of its nuanced application in criminal trials, and of its orthodox application in the circumstances of this case.

The magistrate’s approach to Browne v Dunn was in error with regard to the appellant’s evidence

155. The position is different when the focus turns to the application of the principle with regard to the appellant’s denials. Having dealt with the weight given to any inconsistency in the complainant’s evidence, his Honour went further, saying: I think, in this case, it needs to be taken into account to assess the weight I place on the defendant’s denials.

156. This was a misapplication of the rule in Browne v Dunn. The procedural rule about fairness in putting inconsistent versions that may impugn a witness’ credit to that witness had no bearing on the weight of the evidence of the appellant. Recalling the point in R v Birks (1990) 19 NSWLR 677 cited in Hofer at [31] (and extracted at [130] above), it is one thing to give little weight to an asserted inconsistency in the complainant’s evidence but an entirely different thing to give little weight to the appellant’s evidence for that reason. That was the submission made by experienced counsel for the appellant in the court below when he said: … Then there’s that counter – or denigrate the other evidence before the court. In my submission, it doesn’t diminish the weight that your Honour can place upon those voluntary interactions that [the appellant] had with police on both occasions. …

157. I agree with that submission. The fact-finder cannot say, for example, I am disbelieving the account of the appellant because a procedural rule of fairness was not followed in respect of the complainant. That is the problem with the magistrate’s last sentence in the reasoning on the Browne v Dunn ruling.

158. That error had a material consequence, as is seen in the reasons given for rejecting the appellant’s evidence: Then I have the evidence or the denial by the defendant which is not on sworn evidence where it was not tested which merits incomplete. It lacks detail in places, and … was not put to the complainant. In those circumstances I am comfortable rejecting the defendant’s evidence and I will come back to that in a moment for another reason – and accepting the complainant’s evidence.

159. I suspect there was an error in the transcription of the first sentence, and it is a little unclear what words were actually said. However, the difficulty arises with regard to the second and third sentences, in that one of the reasons the magistrate was “comfortable rejecting” the appellant’s evidence was that it was not put to the complainant.

160. I am thus unable to find that the misapplication of the procedural rule with regard to the evidence of the appellant had no material consequence. Accordingly, the appellant succeeds on Ground 5. The consequences of the error are discussed below.

Ground 6: Did the court below misapply the Liberato/De Silva direction?

161. This complaint concerns the direction given by the court below. The appellant contended that the direction was both incomplete and then misapplied. I have accepted that the direction was technically incomplete, but not that the magistrate either misunderstood the substance of the direction or misapplied it in reasoning to findings of guilt.

The Liberato/De Silva direction

162. The genesis for the direction is De Silva v The Queen [2019] HCA 48; 268 CLR 57 at 515. Its application and content was discussed recently in Park v R [2023] NSWCCA 71 at [93]-[94]: 93. The majority in De Silva noted that “[t]he Liberato direction is addressed, in terms, to a trial at which there is conflicting sworn evidence” (at [11]). However, their Honours considered that such a direction may also be appropriate as regards a record of interview with the accused if the trial judge perceives there is a real risk that the jury will reason that the accused's answers in the record of interview can only give rise to a reasonable doubt if they believe them. 94. The majority in De Silva then went on refine the direction as follows (at [12]): ... it is preferable that a Liberato direction be framed along the following lines: (i) if you believe the accused’s evidence (if you believe the accused’s account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused’s evidence (if you do not believe the accused’s account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt? The direction given by the magistrate

163. The direction given by the magistrate was in the following terms: Now, I’ve been invited to give myself the Liberato and Murray directions, they essentially reinforce the onus and standard of proof. In relation to the Liberato direction, I note that it’s not simply a choice whether or not I believe the complainant or I believe the defendant, even if I were to reject the defendant’s evidence, I must not convict him unless I am satisfied that the prosecution has proved its case beyond a reasonable doubt and that would, therefore, mean I accept the complainant’s evidence to the requisite standard. The parties’ positions

164. The appellant’s complaint is that the magistrate did not refer to the second possibility contemplated in the usual direction, of finding difficulty accepting the accused’s account but thinking it might be true. The omission is said to amount to error.

165. The further complaint is that the substance of the direction was then misapplied in the magistrate’s reasons. Parts of the passage giving rise to this complaint have been set out above, but the juxtaposition here is important. It was as follows: So in summary, we have a very clear explanation of what occurred by the complainant on two occasions as well as contemporaneous [complaint] on the day to some degree to her friend. Her complaints are essentially consistent although not identical on each occasion. Then I have the evidence or the denial by the defendant which is not on sworn evidence where it was not tested which merits incomplete. It lacks detail in places, and … was not put to the complainant. In those circumstances I am comfortable rejecting the defendant’s evidence and I will come back to that in a moment for another reason – and accepting the complainant’s evidence.

166. The appellant submitted that this passage reveals that despite the magistrate stating that “it is not simply a choice of whether or not I believe the complainant or I believe the defendant” early when expressing the Liberato direction, his Honour did exactly that. The side-by-side comparison of the evidence was said to be suggestive of the magistrate treating the matter as if it were a choice between the two versions, which bespeaks error in the application of the direction. Further, the magistrate took into account the fact that the complainant was not cross-examined to reduce the weight to be given to the appellant’s account and to more readily accept the complainant’s evidence (being the error that I have already accepted in relation to Ground 5).

167. The respondent submitted that when the directions are read fairly and as a whole, the magistrate did not misapprehend the onus and standard of proof in the manner for which the appellant contended, or fail to direct himself adequately as to the law, or misapply the relevant principles in his reasoning. That is because the magistrate had earlier stated with regard to the onus of proof and the standard of proof (emphasis added): If I’m satisfied that there may be an explanation consistent with the innocence of the defendant or I am unsure where the truth lies, then I must find the charge has not been proved to the requisite standard.

168. The emphasised words are relied upon by the respondent in submitting that the substance of the second limb in the Liberato direction set out above was understood. The magistrate was not required to slavishly recite a particular formulation of words from Liberato or De Silva. In stating that “If… I am unsure where the truth lies, then I must find the charge has not been proved to the requisite standard”, the directions given as a whole were adequate.

169. As to the application of the direction, the respondent submitted the magistrate’s reasons did not simply make a choice between the two versions. Rather, he rejected – or positively disbelieved – the denials of the appellant and was satisfied beyond reasonable doubt of the essential aspects of the complainant’s account.

The Liberato direction was adequately given

170. The Liberato direction was not expressed in terms separating out the three possibilities. However, I think by the language that was used and having regard to other parts of the reasoning, the magistrate demonstrated that he had a proper understanding of the way that he was to approach the case in terms of the onus and standard of proof.

171. First, there is the direction that was given, which included recognition that it was not a choice of whether he believed the complainant or the appellant, that rejecting the appellant’s evidence was not sufficient and that the appellant could not be convicted unless the magistrate was satisfied that the prosecution had proved its case beyond a reasonable doubt. The magistrate confirmed that in this case, what was required was that he accept the complainant’s evidence to the requisite standard (and that this required careful scrutiny).

172. Second, the magistrate had earlier said that if he was unsure where the truth lay, he must not convict. That statement broadly encompasses the second limb of the Liberato direction, in that if the magistrate did not accept the appellant’s account but considered it might be true, he must acquit. I accept the respondent’s position that those words captured the substance of the second limb of the standard Liberato direction.

173. Third, it must be appreciated that the Liberato direction was not an obscure or seldom-used concept being adverted to by the magistrate. The direction is a regularly applied principle of law and possibly so intrinsic to fact-finding where there is evidence from a defendant, even unsworn evidence, that the magistrate might be forgiven for incorporating part of the direction in his initial recitation of the appropriate burden and standard of proof.

174. On the whole, I do not consider that the reasons of the magistrate disclose a misunderstanding of the substance of the Liberato direction.

175. Nor did the magistrate misapply the direction or inadvertently reason towards a conclusion of guilt through comparing the two accounts from the complainant and the appellant and treating the task as a choice between the two.

176. There is some force in the appellant’s submission about the magistrate improperly reasoning to guilt by way of a choice between two versions of evidence. The structure of the magistrate’s reasons by way of a summary – with a comparison between the complainant’s evidence and the appellant’s account in the evidence through his interactions with the police – does create a concern about the proper approach to establishing guilt beyond reasonable doubt. It would have been preferable for the magistrate to deal with the appellant’s account in a way more squarely aligned with the reasoning process directed by Liberato.

177. However, the structure of the magistrate’s reasoning was such that the magistrate had already discussed the appellant’s and the complainant’s evidence. The summary at the end of his Honour’s reasons must be read with the substance of his Honour’s reasons, set out at [132] above.

178. Read fairly as a whole, the magistrate accepted the complainant as a witness of truth. His Honour had earlier directed himself that even if he rejected the appellant’s evidence, he must not convict unless he accepted “the complainant’s evidence to the requisite standard” and that he needed to carefully scrutinise her evidence “because everything turns on that evidence”.

179. Later the magistrate said that he had been invited to accept the complainant as a witness of truth and that “I’ll come back to that in a moment”. It can be seen that when his Honour ultimately said that he was comfortable “accepting the complainant’s evidence”, what was being communicated is that he accepted her as a witness of truth, and the reason he did so was because of her clear and consistent evidence, in which there were no apparent signs of exaggeration or embellishment, in circumstances where she was a somewhat reluctant witness and where she had made contemporaneous complaint to some degree about what occurred. He was not accepting her evidence merely in preference to that of the appellant.

180. The reasons for rejecting the appellant’s evidence – that the evidence was not sworn, the evidence lacked detail and it “was not put to the complainant” – were problematic. His Honour stated, “I will come back to that in a moment for another reason” but did not in fact come back to the rejection of the appellant’s evidence at a later point in the delivery of reasons. That difficulty has been dealt with in respect of Ground 5 above.

181. However, in substance, the magistrate did expressly reach a conclusion that the appellant’s interactions with police should be rejected, and they were jettisoned in making the findings that established the elements of the offences. Again, that rejection was not based on a preference for the complainant’s evidence over the words of the appellant. Although what was said was perhaps infelicitous and the structure adopted did not assist in communicating the point, the rejection was implicitly based on the magistrate not finding the appellant to be credible for reasons that his Honour had given earlier. I do not accept that the magistrate misapplied the Liberato principle in erroneously just choosing between two accounts, or in failing to appreciate that if he thought the appellant’s account might be true, he must acquit. Consequences of the establishment of error

182. The appellant submitted that if error were established, the appeal should be upheld and the findings of guilt set aside and either verdicts of not guilty should be entered or the matter should be remitted to the Magistrates Court for hearing according to law.

183. The error that was established was not of the kind that warrants verdicts of not guilty being entered without any further consideration. The question is whether to remit or to embark upon that fact-finding exercise myself. It seems to me that because the complainant only gave short further clarification evidence in the witness box and was not cross-examined, the appellant did not give sworn evidence, and there was no issue as to the credit of the witnesses who were cross-examined, this court would be in the same position to make whatever further findings were required in order to dispose of the matter either way.

184. Given the passage of time since this matter was heard and the nature of the charges, I consider the preferable course is to give the parties the opportunity to tell me whether remittal is still sought. In the first instance, I would propose that be done either by consent directions or at a short hearing. If the position is that this court should proceed to make findings, that can perhaps be done on the papers, but the parties can address that as part of their opportunity to be heard further on the question of remittal or determination.

Conclusion

185. For the above reasons, the orders I make are as follows: (1) The proceeding is listed on 20 February 2026 at 3:00pm for hearing on the question of remittal. (2) The parties have liberty to apply to chambers for the purposes of having consent directions made in chambers as to the further conduct of the matter.

I certify that the preceding one hundred and eighty-five [185] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: Date: