Bligh v Carnell [2025] ACTSC 550

1. This is an appeal by Mr Bligh (the appellant) against his conviction on 4 May 2023 in the ACT Magistrates Court for the following offences: (a) Choking, suffocating or strangling another person, contrary to s 28(2)(a) of the Crimes Act 1900 (ACT) (Crimes Act) (CC2022/7768); (b) Choking, suffocating or strangling another person, contrary to s 28(2)(a) of the Crimes Act (CC2023/2962); and (c) Common assault, contrary to s 26(1) of the Crimes Act (CC2023/2963).

2. The Chief Justice of the ACT Supreme Court assigned this matter to me with the consent of both parties.

3. The trial before Magistrate Stewart (the Magistrate) took place on 3 and 4 May 2023. On 4 May 2023, his Honour found the appellant guilty and delivered his reasons. The appellant is yet to be sentenced for these offences, pending this appeal.

4. I indicate that the notice of appeal for this matter has been amended twice, the most recent amendment being made at the hearing. When the appeal was heard before Loukas-Karlsson J on 22 February 2024, her Honour granted leave to appeal on four grounds.

5. The grounds of appeal that the appellant thus relies on are as follows: i. The Magistrate erred by rejecting the evidence of the appellant [erroneously referred to as the complainant in the further amended appeal]. (a) The Magistrate engaged in impermissible reasoning by drawing an adverse inference from the appellant’s alleged failure to raise matters relevant to his defence in the text messages and initial conversation with police. (b) The appellant was denied procedural fairness by the failure to cross-examine him on his alleged failure to raise matters relevant to his defence in the text messages and initial conversation with police. ii. The Magistrate erred in his assessment of self-defence.

Applicable principles

6. The court has jurisdiction to hear this appeal under ss 208(1)(b) and 214 of the Magistrates Court Act 1930 (ACT), and such an appeal is heard by way of rehearing: McFarlane v Eyle [2022] ACTCA 68 at [18] (Mossop J); [96] (Kennett J) (Eyle).

7. An appellant may succeed if they can show that the verdict was unreasonable or not supported by the evidence: Eyle at [97]-[98] (Kennett J); Alexander v Bakes [2023] ACTCA 49 at [19] (Mossop, Baker and Abraham JJ) (Bakes). However, as noted by the prosecution, it is also sufficient for the appellant to show that there is a material legal, factual, or discretionary error in the Magistrate’s decision: Bakes at [18]; Alfred (a pseudonym) v Eiffert [2023] ACTSC 403 at [37] (Baker J) (Eiffert); Grant v Carey [2023] ACTSC 105 at [8] (Loukas-Karlsson J).

8. If the court concludes that there is an error, it must make its own findings and formulate its own reasoning based on those findings: Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679 at [43] (Robinson Helicopter), cited in Eiffert at [39].

9. However, as the prosecution properly noted, an appeal court must make proper allowances for the advantages enjoyed by the trial court and the “natural limitations” that exist in the case of any appeal court, including the disadvantage the appeal court has in evaluating the credibility of witnesses and the “feeling” of the case: Fox v Percy [2003] HCA 22; 214 CLR 118 at [23], [27]. Findings of fact made by a trial judge should also not be interfered with unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony” or if they are “glaringly improbable” or “contrary to compelling inferences”: Robinson Helicopter at [43].

Background

The two version of events

10. The charges arise from the same incident on 9 August 2022. The complainant was the appellant’s former partner, who at that time resided at the same address as the appellant and their daughters. On that evening, the appellant and the complainant had a heated argument over the appellant’s work clothes.

11. On the prosecution’s case, as outlined in the appellant’s written submissions, the complainant walked away from the appellant at the conclusion of the argument and returned to her daughter’s bunk bed, where her daughter was sleeping. The appellant then grabbed the complainant by the hair to pull her away from the bed. The complainant walked out of the bedroom to avoid waking the daughter. This constituted the common assault charge (CC2023/2963).

12. The appellant was then said to have grabbed the complainant by the neck area when she stepped out of the bedroom. The complainant grabbed at the appellant’s hands around her neck area, and the appellant then pushed her against the wall in a spare bedroom with both hands held tightly around the complainant’s neck. With her back against the wall, the complainant was unable to pull her head back as she previously had or was attempting to do to get the appellant’s hands off her neck. This constituted the first choking charge (CC2022/7768) and lasted 5 to 10 seconds.

13. At some point, the appellant was alleged to have let go of the complainant. The complainant then moved to the kitchen area down the hallway. As the complainant did so, the appellant grabbed her, pushed her against a wall and proceeded to squeeze her throat again. This lasted for approximately 5 to 10 seconds and constituted the second choking charge (CC2023/2962).

14. The appellant was alleged to have let go again at some point. The complainant then ran to the kitchen to grab a knife in what the appellant noted was a “self-described” act of self-defence, before running into the garage and proceeding to sit in her car.

15. The prosecution’s case continued that between 10:05pm and 10:06pm, the appellant sent a series of text messages to the complainant, writing: In future, please do not attack me with a knife or try to bait me into fighting you or scream “help me or I’m gonna die” when you are very clearly the aggressor. I do not want to be a part of whatever fantasy you are trying to set up here and I dont [sic] appreciate it. I’m going to block your number now.

16. The complainant called police shortly after 10pm. The complainant reported that the appellant had had his hands around her throat and tried to strangle her. The complainant also reported that her hair was falling out because the appellant had pulled her hair. The complainant said in the call that she had tried to grab a knife, but left the house as she knew the incident was escalating. The complainant also gave the following account in relation to the knife, as recorded by the police transcript of the phone call: I just, like, grabbed it on the kitchen bench and I – I did kind of, like, hold it up and I figure it probably did come across like I was lunging at him, but I wasn’t. I was just, like, getting out of the house. I was just so mad at him. I never thought that he would, like, try to hold me at, like, my throat. Like, I actually felt, he’s been assaultive before in the past, but I never felt my life was in danger. And for the first time …

17. The police attended the home at approximately 10:15pm and the complainant participated in a Family Violence Evidence-in-Chief (FVEIC) interview. The complainant’s interaction with the police was also recorded by a body-worn camera (BWC).

18. The appellant was also interviewed by the officers attending, with this interview being recorded by the BWC. When the appellant was interviewed by police, the appellant made admissions which were captured on the BWC footage and that were relied on by the prosecution. A portion of the interview recorded by the BWC was provided in the appellant’s written submissions, the particularly relevant portions of which I reproduce below: Officer: What happened tonight mate? [The appellant]: We had an argument Officer: Yep. [The appellant]: I don’t know what the first one was about, and then the second one was about … oh her mum put some clothes in the washer. Officer: Ok. Do you want to tell us anything more? [The appellant]: About the fight? Officer: Yeah. [The appellant]: Um, like in what sense? Officer: Was there an altercation between you two? [The appellant]: Oh yeah, yeah… She grabbed the knife --- … um, there was a black one on the bench, um, and then I grabbed her after that and then made sure she couldn’t get into the girls’ bedrooms, the seven-year-old’s asleep. ‘Cos they sleep downstairs in the bunk bed. Officer: Yeah. Alright, and did anything else happen? [The appellant]: Not really. She said she was gonna die. Officer: Why would she have said that? [The appellant]: I dunno. Officer: Did you do anything to make her say that? [The appellant]: [Shakes head]. Officer: Or think that she was going to die? [The appellant]: No… Not, like, not [untranscribable] I grabbed her. I grabbed her around the neck when, ah, she had the, like, after she had the knife, I grabbed her by the neck. When I said I grabbed her, that’s when I grabbed her. … Officer: Which hand did you grab her? [The appellant]: [Holds up right hand] That one. Right one Officer: Yeah? And what did you do with the hand? [The appellant]: What do you mean? Oh I just grabbed her neck, like that [indicates choking motion]. Officer: Alright, we’ll just caution you mate, that anything you say or do now may be used as evidence--- [The appellant]: Yeah, yeah. (Emphasis added by the appellant.)

19. The appellant’s written submissions provided a further transcript from later in the BWC footage including the following: Officer: So you said you grabbed her by the hand--- [The appellant]: No I grabbed her by the neck. Officer: ---by the, sorry by the neck. With your hand? [The appellant]: Yeah. Officer: And the right hand? [The appellant]: [Indicates] Yeah. Officer: And what did you do when you grabbed her around the neck? [The appellant]: Had her [untranscribable] against the wall near the air conditioning unit … Like where the control for the air con is. So she was, so I was between her and the knives. Officer: Yep. Did you squeeze her? [The appellant]: Yeah, yeah. Yeah. Like, not... not to the point, like, of her passing out or anything. It was enough for me to feel safe. Like as in, yeah, I did… Did I squeeze her? Probably, but not, not purposefully… If that makes sense. [Officer]: But you still grabbed her around the neck? [The appellant]: Yeah, yeah, yes. Absolutely.

20. I note that it emerged at the appeal hearing that neither party had a copy of the original marked for identification (MFI) document that contained the BWC footage. However, counsel for the prosecution agreed that the partial excerpt provided in the appellant’s written submissions was accurate. Counsel for the prosecution also agreed with the appellant’s characterisation that the gaps between the first and second excerpts of transcript (timestamped 06:25 and 09:22 respectively) contained no material questions from the police.

21. Counsel for the appellant also noted that there was no objection to the manner and timing of the police caution in the interview, although counsel noted that the police were aware of the allegations that the appellant assaulted and choked the complainant at the time of questioning, through the complainant’s 000 call.

22. At 10:20pm, the appellant was arrested. The complainant, Constable Carnell (the informant), Constable McDonald, and Sergeant Wilson (the officer who interviewed the appellant as recorded by BWC) all gave evidence at trial. Counsel for the appellant in his written submissions also noted that the prosecution relied on the following documentary evidence: (a) The audio and transcript recording of 000 call. (b) The FVEIC interview footage. (c) BWC footage from Constable Carnell and Sergeant Wilson. (d) A screenshot of text messages between the appellant and the complainant. (e) A floor plan marked by the complainant.

23. At trial, the appellant denied the first choking charge and the common assault charge. The appellant admitted the second choke charge “as to the physical elements” but pleaded self-defence.

24. The appellant also gave evidence at trial of his version of the events that occurred on the night. According to his testimony, during the argument the complainant had picked up an “orange knife”. The complainant was said to have then moved towards and threatened to kill the appellant, before “escalat[ing]” to threatening to kill their daughters. The appellant gave evidence that the complainant then moved toward the room of one of their daughters. The appellant said he went in after her as “I was worried that – after what [the complainant] just said, she was going to hurt [the daughter]”.

25. The appellant then gave evidence that the complainant kicked him and that he grabbed the complainant “by the wrist and pulled her out of the bed”. The complainant was then said to have left the room and the appellant, after checking on their daughter, followed the complainant and put his hand “up under her at the back of her jaw, so that she couldn’t move or see anything, and then – with the other hand, with my left hand”, grabbed the complainant’s right wrist to take the knife off of her and to prevent her from hurting their other daughter. The appellant gave evidence that grabbing the complainant’s neck and jaw was “the easiest way so that she couldn’t see where she had the knife”.

26. The appellant gave evidence that he then placed the knife near the sink. The complainant was then said to have moved to the pantry and “had food in one hand”. After this, the complainant was said to have gone to the other daughter’s room and said, “Oh my god, I’m going to die, I’m going to die.” The appellant followed to check if the complainant was hurting herself and, upon confirming that the complainant was unarmed, said “You’re not going to die, stop being a fucking idiot”.

27. The appellant then said the complainant responded by grabbing another knife and “flailed it” twice at the appellant, saying “let’s see how you feel” as she did so. The complainant then set the knife down and “goes and locks herself in the car.” On the appellant’s account, the appellant did not follow the complainant to the car, and instead stayed inside and locked the door as he was “afraid [the complainant] was going to kill the girls.”

28. On the appellant’s evidence, the appellant then continued to “get the girls’ stuff ready, which took another couple of minutes”.

29. The appellant gave evidence that he then took his daughters’ bags, unlocked the door to the garage, entered the garage and walked past the complainant in her parked car to get to his car. As he walked back, he told the complainant, “[y]ou need to go to your mum’s, and I’m going to take the kids to Queensland if you don’t settle down”. The appellant locked the garage door on his way back into the house and was with his daughter until the police officers arrived. The appellant asserted that he sent the texts to the complainant with the intention of “try[ing] to get her, like, to de-escalate her to make her okay”.

The Magistrate’s reasons

30. The Magistrate begun his reasons by directing himself as to the relevant law. Relevantly, given the alternative account of events pleaded by the appellant, the Magistrate reminded himself of the direction in Liberato v The Queen (1985) 159 CLR 507 (Liberato).

31. There is no complaint on appeal as to the adequacy of the direction the Magistrate gave in accordance with the High Court in Liberato.

32. The Magistrate proceeded to first consider the appellant’s account. His Honour noted that “little or nothing about his account had a ring of truth”. The Magistrate observed that had the events occurred in accordance with the appellant’s account, then the complainant would have had multiple opportunities to harm their daughters, “who quite clearly were precious to them both”.

33. Further, the Magistrate noted that the appellant had three occasions to complain about the complainant’s behaviour: (a) In text messages sent to the complainant on the day; (b) To the police when they arrived; and (c) In his evidence in court.

34. On each occasion, the Magistrate found that the appellant gave versions of events that “was highly inconsistent” with each other. The Magistrate in particular noted the inconsistency between the appellant’s account of events at trial and the text messages he sent, in that the appellant’s account at trial was that “essentially, the interaction other than [the complainant’s] threats was silent and awkwardly silent”.

35. Most pertinently for this appeal, the Magistrate also noted that the appellant had multiple opportunities to complain to the police or another party regarding the alleged threats by the complainant: … there was the failure to complain to the police or anyone else after these threats had been made, and attempts had been made, and attempts had been made to carry them out by his children’s mother. He had a perfect opportunity to explain to the police why he behaved the way he said he did. And it would have been perfectly explicable if he had just been able to complain that there had been threats to kill the children; it may have been a very different outcome on the night. Instead, there was an extraordinary robotic continuous of chores in the face of what should have been a highly emotive, stressful situation, which commanded a reaction and complaint from him.

36. Ultimately, the Magistrate concluded the appellant’s evidence could be “entirely disbelieved and put to one side”.

37. The Magistrate did note, however, that if he were to accept the appellant’s account, he would be satisfied that the appellant disarming the complainant using a “one-handed choke or application of force to her neck, pushing her head upwards and her body against the wall” was an act of self-defence. The force used was not excessive in the circumstances, and the complainant was disarmed and was not further harmed other than “some red marks caused to her neck”.

38. His Honour found that the complainant was “overwhelmingly… telling the truth” and that there was nothing inconsistent about the complainant’s various accounts. In the Magistrate’s view, the complainant was also not “shaken in cross-examination at all”. His Honour did note that the FVEIC was “not the best evidence-in-chief interview that this court would have seen” as it did not push the complainant for detail. Nevertheless, the Magistrate rejected the contention that this should reflect negatively on the credit of the complainant.

39. Ultimately, the Magistrate found that the three charges were proven: In my view, [the complainant’s] evidence was to the standard of proof beyond reasonable doubt. And I accept has proved her allegations that she was choked. That after her hair – being pulled out of her daughter’s bed and that she was again choked in the kitchen. And I find proved charges 7768/2022, 2962/2023 and 2963/2023 beyond reasonable doubt and return verdicts are proved. The appeal

40. The first three grounds of appeal raise an issue as to whether the Magistrate drew an adverse inference from the appellant’s failure to mention in text messages and the recorded conversation with police on the BWC footage, what the appellant later mentioned in his evidence in court. The appellant submitted that by doing so the Magistrate effectively abrogated the appellant’s right to silence. Further, the prosecution did not cross-examine the appellant as to why he did not raise the issues of the complainant’s threats earlier. The appellant submitted that this created an issue of procedural fairness as the appellant was not given the opportunity to explain the failure.

41. The fourth ground is the complaint that the Magistrate erred in assessing the issue of self-defence.

Ground (i)

Adverse inference (ground (i)(a))

42. With respect to this ground, counsel for the appellant submitted that the Magistrate’s reliance on the appellant’s alleged failure to raise matters relevant to his defence in his text message to the complainant and in his recorded conversation with police, being the alleged threats made by the complainant against him and their children, amounted to impermissible reasoning by drawing an adverse inference contrary to the appellant’s right to silence.

43. Counsel for the appellant submitted that the Magistrate’s reasons for dismissing the appellant’s case start and finish with observing the appellant’s failure to complain.

44. Counsel for the appellant relied on the passage of the Magistrate’s reasons reproduced above at [35] of this judgment. The Magistrate was said to have proceeded on an erroneous premise that emotional circumstances “commanded” an immediate reaction and complaint from the appellant. The asserted premise that an accused is under a positive obligation to disclose all relevant matters when they first speak to police was also submitted to be inconsistent with common law and ACT legislation: cf Evidence Act 1991 (NSW), s 89A. At the hearing, counsel for the appellant essentially submitted that the situation might have been different if the appellant had been given an NSW “special caution” during the interaction recorded in the BWC footage, namely a caution that failure to raise anything relevant to his defence would be used adversely against him.

45. The appellant relied on Petty v The Queen; Maiden v The Queen (1991) 173 CLR 95 (Petty). Counsel for the appellant also cited R v Anderson [2002] NSWCCA 141 (Anderson). In the appellant’s submission, Anderson turned on questions put in cross-examination about why the offender in that case did not tell the police about a third party that he supposedly lent clothes to. Counsel noted that the appellant in Anderson submitted that the “purpose and/or effect of the questions was to invite the jury to draw an adverse inference against the appellant”: Anderson at [19]. The NSW Criminal Court of Appeal ultimately found that the trial had miscarried when the totality of the material was taken into account: Anderson at [31]. It should be noted that the prosecution in Anderson conceded that some of the questioning did “carry the suggestion of the proscribed inference”, being an unfavourable inference based on the exercise of the right of silence at the time of the appellant’s arrest: Anderson at [24]-[25].

46. Counsel for the appellant also relied on Sanchez v R [2009] NSWCCA 171; 196 A Crim R 472, in particular the following observations from Campbell JA (Latham and Harrison JJ agreeing) at [52]: The account of the “right of silence” given by the High Court majority in Petty extends even further than the sixth category identified by Lord Mustill in R v Director of Serious Fraud Office. The prohibition on suggesting “that previous silence about a defence raised at the trial provides a basis for inferring that the defence is a new invention or is rendered suspect or unacceptable” applies even if a person in authority has not asked an accused person a question in response to which one would expect, if the account the accused gave at his trial were true, that he would have given that account. … Even a very talkative person can be considered “silent” within the meaning of this principle, if such conversation as he or she has before the trial does not include an account of the substance of the story that the accused tells in evidence at the trial, or has his or her counsel raise through cross-examination of other witnesses at the trial.

47. Ultimately, counsel for the appellant at the hearing concluded that these authorities stand for the proposition that the failure to raise a matter in an exchange with investigating police cannot be held against a person, particularly when a caution has been given that the person does not have to say anything.

48. Finally, the appellant submitted that the Magistrate’s reasoning was “inconsistent with the proper approach to complaint evidence”. Courts, counsel submitted, are required to direct themselves when assessing complaint evidence that there may be reasons why a complainant did not immediately complain or provided a different account to the accused. Analogously, it was submitted that the appellant may have had many reasons for not immediately complaining, such as from exercising his right to silence, as a result of limited questioning by police, or out of a reluctance to implicate his then-partner.

49. The prosecution submitted that the appellant’s complaints on appeal were without regard to how the trial was actually conducted: R v Mahoney [2000] NSWCCA 256; 114 A Crim R 130 at [15] and R v Fowler [2003] NSWCCA 321; 151 A Crim R 166 at [38]. The prosecution noted that the appellant’s experienced counsel at trial did not raise any issue in relation to the right to silence. As a general proposition, counsel for the prosecution submitted the accused is bound by the conduct of their counsel, subject to well-defined exceptions: R v Baden-Clay [2016] HCA 35; 258 CLR 308 at [48].

50. Nor did the appellant’s counsel at trial request that the Magistrate direct himself on the right to silence. If a direction was not requested by counsel, then the Magistrate was entitled to rely on counsel’s judgment: Ward v R [2022] NSWCCA 271 at [89]-[90]. From this, the prosecution also invited the Court to infer that the appellant’s counsel at first instance “saw no forensic disadvantage with respect to the evidence.”

51. More directly, counsel for the prosecution submitted that the appellant’s submissions involved a misapplication of Petty and Anderson. In counsel’s submission, this appeal was not a “right to silence” case. The appellant was submitted to have chosen not to remain silent by volunteering a version of events to police and by texting a version of events to the complainant.

52. Counsel for the prosecution submitted that the Magistrate did not draw an adverse inference contrary to the appellant’s right to silence, nor was the prosecutor at trial asking the Magistrate to draw an inference from the appellant’s silence. Rather, counsel for the prosecution submitted that it was the inconsistency of the account with other evidence available to his Honour that formed the source of the adverse inference. Counsel for the prosecution submitted that the Magistrate did not suggest that there was an onus on the appellant to provide an explanation.

53. The submitted inconsistencies identified by the prosecution in their written submissions included: (a) That each of three versions of event proffered by the appellant were different to one another. Counsel for the prosecution submitted that the Magistrate found that there was a distinction between the version given in the first-in-time texts and the appellant’s oral evidence, in particular the behaviour of the appellant and the reference to the children. (b) The Magistrate characterisation of the appellant’s behaviour as a “robotic continuous of chores in the face of what should have been a highly emotive, stressful situation”.

54. Counsel for the prosecution also submitted that if the appellant was truly concerned that the complainant might murder his children, it “defies belief” that he would not have told the police when they attended the residence. Rather, his account was focused on his own self-defence (not that of his daughters). This omission, it was submitted, was “striking”: citing Xypolitos v The Queen [2014] VSCA 339; 44 VR 423 (Xypolitos).

55. Counsel for the prosecution also submitted that the reference to “commanded a reaction and complaint” in the Magistrate’s reasons needed to be read in context and considering the evidence. The reference to “command”, it was submitted, was “plainly with respect to what the appellant did at the time, to which the magistrate clearly rejected as being a believable or legitimate account.” As noted above, the Magistrate described the appellant’s conduct in the aftermath of the first alleged knife attack as “a robotic continuous of chores”. The appellant had stated in cross-examination that he continued packing his daughters’ lunches.

56. Counsel for the prosecution submitted that the Magistrate relied on more than just the text messages as a basis to reject the appellant’s version of event. The Magistrate, it was submitted, had had regard to the “oral evidence, the version [the appellant] provided and the implausible nature” of the appellant’s account. The evidence from the text messages and the BWC evidence was submitted to form just one piece of the Magistrate’s reasoning.

57. Counsel for the prosecution submitted that the right of silence in Petty did not preclude adverse inferences from being drawn if the appellant gave inconsistent accounts. In support, the prosecution relied on Xypolitos at [78]: The applicant's right to silence, and the prohibition against drawing adverse inferences from its exercise, does not extend beyond the investigative context where a caution is administered. There was nothing that stood in the way of an adverse inference being drawn from the applicant's failure to inform anyone about the victim's death or what he had done with the victim's body. Furthermore, this was not a case of silence simpliciter. The applicant did not merely remain silent about what he had done. He told lies so that his involvement in the death would not be discovered. As Cuenco shows, once an offender provides a positive account of relevant matters within his knowledge, the fact that he omits other relevant facts may, depending upon the circumstances, support incriminating inferences. (Emphasis added by the prosecution.)

58. Counsel for the prosecution also relied on Van der Vegt v the Queen [2016] NSWCCA 279 (Van der Vegt) where the NSW Court of Criminal Appeal rejected a complaint that the accused’s right of silence had been impugned where he was being asked questions during the execution of a search warrant. At [39]-[43], Button J (Hoeben CJ at CL and Campbell J agreeing) noted: 41. ...It is perfectly true that, for many years, the criminal justice system has firmly set its face against drawing inferences from a suspect or accused exercising his or her right to silence, whether outside the courtroom (Petty v The Queen; Maiden v The Queen) or within it (RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3; Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25). 42. But that was not the case here. As I have said, as a matter of evidence the applicant exercised his right to silence neither completely (that is, by saying nothing at all about the contents of the safe), nor even partially (that is, by commenting on some items as they were produced, but not others). As I have said, there was a flow of discussion on his part. And at no time during those discussions did the applicant say to the police that he did not recognise any of the discs produced from the safe. 43. For that reason, I do not accept that the submissions made by the Crown Prosecutor to the jury in final address impugned the right to silence. To the contrary, when seen in the context of what actually occurred during the execution of the search warrant, those submissions must be understood as being that the version given by the applicant in the witness box was inconsistent with the earlier version given by the applicant to the police at his home. In particular, they must be understood as being a submission that the version given by the applicant at trial (that he had never seen the discs in question before, and that they must have been planted in the locked safe in his house) was not consistent with the version originally given to police (that the discs produced depicted adults, drawing no distinction between discs that he recognised and discs that he did not). (Emphasis added.)

59. In oral submissions, counsel for the prosecution submitted that while the appellant was not formally interviewed by the police at the time he was recorded in the BWC footage, there was no need for the appellant to be under a formal interview for a tribunal of fact to “impugn or assess the credibility of evidence through a process of weighing prior inconsistent statements”. Given the appellant volunteered a version of events to police after making previous representations, counsel for the prosecution submitted that it was “open, and very properly so” for a tribunal of fact to assess the appellant’s evidence at the hearing against the previous representations that were volunteered.

60. Counsel for the prosecution noted that the appellant was recorded in the BWC footage being asked directly, “What happened tonight, mate?”. Counsel noted that it would have been one thing at this point, if the appellant had exercised his right to be silent, but that instead, the appellant went on to volunteer a version of events. Counsel submitted that “[o]ne would expect the very first thing” the appellant would say was that “I thought my wife/my partner was going to murder our children” and that he had acted defensively.

Lack of procedural fairness and the rule in Browne v Dunn (ground (i)(b))

61. Counsel for the appellant submitted that the danger in the manner of the Magistrate’s reasoning was “exacerbated” by the prosecutor’s failure to cross-examine the appellant on why the appellant did not raise the threats in the text messages or to the police, inconsistently with procedural fairness and the rule in Browne v Dunn (1893) 6 R 67 (Browne v Dunn).

62. Counsel for the appellant submitted that, during the appellant’s lengthy cross-examination, at no point did the trial prosecutor suggest to the appellant that the appellant failed to complain to the police (or in the text messages) about the complainant’s alleged threats to kill their children. Had the appellant been asked, counsel for the appellant submitted the appellant could have proffered an explanation for the alleged omission. Such an explanation, it was submitted, could include the appellant’s lack of understanding that he was obliged to raise all matters relevant to his defence during the “limited questioning” and that “failure to do so would result in an unfavourable inference being drawn at trial”. In written submissions, counsel for the appellant submitted it was an error to draw an adverse inference from the appellant’s failure to raise the issue in the recorded conversation: Masters Home Improvement Pty Ltd v North East Solution Pty Ltd [2017] VSCA 88; 372 ALR 440 at [245] (Santamaria, Ferguson and Kaye JJA).

63. In response to the appellant’s submissions on the denial of procedural fairness and the rule in Browne v Dunn, the prosecution submitted that the rule must not be applied in a rigid and formulaic way and that its application would depend on the circumstances of each case: Chifuntwe v The Queen [2018] ACTCA 12 at [59]; Mulvihill v R [2016] NSWCCA 259 at [151]-[218]. Counsel for the prosecution submitted in its further written submissions that the mischief in Browne v Dunn was a total failure to cross-examine a crucial witness. The rule in Browne v Dunn, on the prosecution’s submission, would not be contravened where aspects of a witness evidence “which are inherently improbable” were not challenged: Levinge v Director of Custodial Services (NSW) (1987) 27 A Crim R 163 at 176.

64. Further, counsel for the prosecution in written submissions noted that the rule does not require that a matter be put to the parties, if the matter was clearly at issue in the proceeding: Stern v National Australia Bank [2000] FCA 294; 171 ALR 192; Ritchie v The Queen [2019] VSCA 202 at [69]. In the appellant’s trial, the prosecution submitted that the truthfulness of the appellant’s account was clearly in issue.

65. Counsel for the prosecution also relied on the following passage in Murphy (a pseudonym) v The King [2023] SASCA 107 (Murphy) (at [152]): Ultimately, the rule in Browne v Dunn may be seen as adjunct to procedural fairness. Procedural fairness is an essential attribute of a court’s processes. In the criminal court, procedural fairness may be conceptualised as according the accused a fair trial. Whilst “descriptively accurate”, whether an accused has been afforded procedural fairness requires a careful analysis of what is required in the particular case. That is to say, the “rules of procedural fairness do not have immutably fixed content.” At their core, they require that the person affected know of the critical issues to be addressed, and of any significant, credible material which is adverse to the affected person. It is not ordinarily necessary to put to a party any matter which is in any event clearly in issue. (Citations omitted.)

66. In this case, counsel for the prosecution submitted that: (a) It was clear that the prosecution’s case was that the appellant was lying: “The appellant was clearly on notice that the prosecution would urge the court to reject his evidence as a self-serving lie”. (b) The tone of the prosecution’s cross-examination was submitted to be one of “cynicism and incredulity”. (c) The prosecutor at trial did put the matter (that the appellant’s evidence was a lie) to the appellant even though she was not obliged to do so. (d) The prosecution was not obliged to put matters that were inherently improbable, such as the appellant’s account.

67. In sum, the prosecution submitted that there was no breach of the rule in Browne v Dunn in this case.

68. Counsel for the prosecution also noted Bulstrode v Trimble [1970] VR 840, where Newton J observed that if the witness’ evidence was “incredible or unconvincing, or if it is contradicted by other evidence which appeared worthy of credence”, then the fact that the witness was not cross-examined “would, or might be” of little importance in deciding whether to accept the evidence: at 848.

69. In further written submissions, counsel for the prosecution also reiterated its submissions discussed above at [50] of this judgment, that a party is bound by the conduct of their counsel at trial. The prosecution noted the appellant’s counsel could have raised the asserted issue of non-compliance with Browne v Dunn and the impact non-compliance should have on the weight on the evidence and the prosecution’s trial submissions, but did not do so.

70. Ultimately, the prosecution submitted that even if a breach of Browne v Dunn was established, the Magistrate was “not precluded from taking into account the evidence inconsistent with the appellant’s evidence-in-chief and considering it through the prism of common sense”, in light of the authorities, or prevented from embarking upon the “line of argument used by the Magistrate”. In its initial written submissions, the prosecution submitted that its closing address to the Magistrate in regard to the text message also highlighted why the appellant’s evidence should be disbelieved, with specific reference to the evidence. The address was directed to the plausibility of the evidence and suggested that it should be looked at through the prism of common sense.

71. Counsel for the appellant conceded that the appellant did not raise the threats in his text messages and only briefly mentioned his daughters in the BWC footage. However, counsel reemphasised the crux of its case that the appellant was not asked why he failed to raise the threats, and that there may have been “any number of reasons” why the appellant did not raise them.

Ground (ii)

Self-defence

72. Counsel for the appellant submitted that the Magistrate’s alleged errors outlined in the “right to silence” grounds also impacted his assessment of the appellant’s case in relation to self-defence. In oral submissions, counsel for the appellant submitted that the Magistrate’s assessment of self-defence was also intertwined with the Magistrate’s assessment of the appellant’s evidence.

73. Based on the appellant’s premise that the Magistrate had dismissed the appellant’s evidence based on “erroneous reasoning outlined above”, counsel for the appellant submitted that the Magistrate then dismissed the appellant’s evidence without considering the common law test for self-defence. Indeed, counsel for the appellant went further by noting that the Magistrate did not even direct himself as to the common law of self-defence. Counsel for the appellant noted that the parties had agreed that the common law applied as the offence was not covered by the Criminal Code 2002 (ACT): cf R v Forsyth [2013] ACTSC 174 at [107].

74. Counsel for the appellant also submitted that the complainant raised the issue of self-defence in the call to police, relying on the following excerpt: Police Emergency: You don’t have the knife anymore, though, do you? [Complainant]: No, I just, like, grabbed it on the kitchen bench and I – I did kind of, like, hold it up and I figure it probably did come across like I was lunging at him, but I wasn’t. I was just, like, getting out of the house. I was just so mad at him. I never thought that he would, like, try hold me at, like, my throat. …

75. This evidence was submitted to have supported the appellant’s belief that he needed to act in self-defence.

76. At the appeal hearing before Loukas-Karlsson J, counsel for the appellant also took her Honour to the prosecution’s submission at trial to demonstrate how the failure to raise the threats became intertwined with the self-defence issue: At no point during any of that conversation does he say, 'My daughters were under threat'… That's very key evidence, your Honour, for somebody who is saying that he's acting in self-defence.

77. Given the Magistrate’s finding that, had his Honour accepted the appellant’s account, that the appellant’s act was not excessive in the circumstances, counsel for the appellant submitted that the issue of self-defence required further consideration without errors. Counsel noted that the appellant had noted in both the BWC footage of the night in question and in his evidence at the trial that he believed upon reasonable grounds that it was necessary to do what he did in self-defence. Counsel closed by noting that failure to provide further consideration deprived the appellant of a real opportunity of acquittal and the Magistrate should have had a reasonable doubt about the appellant’s guilt.

78. Counsel for the prosecution took issue with the appellant’s characterisation of the Magistrate’s approach. While counsel for the prosecution conceded that the Magistrate did not specifically refer to the common law of self-defence as described in Zecevic v DPP (1987) 162 CLR 645, counsel noted that it was “abundantly clear” that his Honour considered the issue of self-defence: On his version, she's followed to the kitchen and next to air-conditioning controls, which are described as position 3 on Exhibit D8 by him. He disarmed her. He did that by a one-handed choke or application of force to her neck, pushing her head upwards and her body against the wall. That allowed her to not be able to see what was going on with the knife, and he took the knife off her. In my view, if this was [self-defence], it was not excessive in the circumstances. The force, and application of it, was enough to achieve the end. She was disarmed and she was not harmed in any particular way other than - in my view, it's established beyond reasonable doubt - there were some red marks caused to her neck. (Emphasis added by the prosecution.)

79. In the prosecution’s submission, the appellant’s complaint that the dismissal of the self-defence case without considering the common law test was “significant particularly given the Magistrate’s acceptance that on [the] appellant’s version self-defence was established and not excessive”, mischaracterised his Honour’s reasons. The prosecution submitted that the Magistrate did not accept the appellant’s version of events, but only that there were red marks on the complainant’s neck, and that the appellant’s conduct might constitute self-defence if the appellant’s version was to be accepted.

80. In other words, counsel for the prosecution submitted that the Magistrate dismissed the self-defence case by necessary implication when the Magistrate rejected the appellant’s version of the events, as self-defence only arose on this rejected version: citing O’Connell v McMennemin [2014] ACTSC 112 at [77]. Consideration

81. In the end, I have reached the conclusion that the appeal should be dismissed.

82. As noted earlier, after finally settling on the four grounds of appeal argued before Loukas- Karlsson J on 22 February 2024, those grounds can be distilled down to the following main complaints: (a) First, the Magistrate erred by rejecting the appellant’s evidence, because he drew an adverse inference about the appellant’s failure to mention matters relevant to his defence during his initial conversation with the police in circumstances where the appellant was never cross-examined about that failure. It was submitted that in so doing, the Magistrate undermined the appellant’s right to silence. (b) Second, the Magistrate erred in assessing the issue of self-defence which arose in respect of the third count, the charged offence of common assault.

83. Dealing first with the issue arising in respect of the first three grounds of appeal, I consider that the appellant’s reliance on Petty and cases such as Anderson is misconceived.

84. The appellant volunteered a version of events on the night in question and thereafter elected to give evidence at the trial. It was his decision to text the complainant prior to the arrival of the police, and it was his decision to speak to the police when they arrived shortly after 10pm that night.

85. The Magistrate assessed the oral evidence of the appellant and compared it with the text messages and the conversation with police a few minutes later. Each of the versions given by the appellant are inherently inconsistent with each other.

86. The Magistrate, after carefully analysing the evidence given by the appellant, articulated all of the inconsistencies and inherent implausibility in the appellant’s account in evidence, then concluded: Secondly, there was the failure to complain to police or anyone else after these threats had been made, and attempts had been made to carry them out by [the appellant’s] children's mother. He had a perfect opportunity to explain to police why he had behaved the way he said he did. And it would have been perfectly explicable if he had just been able to complain that there had been threats to kill the children; it may have been a very different outcome on the night. Instead, there was an extraordinary robotic continuous of chores in the face of what should have been a highly emotive, stressful situation, which commanded a reaction and complaint from him. In my view, his evidence can be entirely disbelieved and put to one side.

87. There was no error in the Magistrate’s approach to that evidence or the conclusion he reached. Having chosen to send the text message to the complainant, speak to police, and then having chosen to give evidence in court, the appellant cannot now complain that the Magistrate drew an adverse inference against him on the basis of the inconsistencies between each of those three accounts.

88. As the Victorian Court of Appeal Court in Xypolitis, previously referred to, observed, once an offender provides a positive account of relevant matters within his knowledge, the fact that he omits other relevant facts may, depending on the circumstances, support incriminating inferences.

89. The observations of the NSW Court of Criminal Appeal in Van der Vegt are apposite to the present case (at [41]-[43]): As I have said, I have added to the extract from Exhibit B the times at which the applicant said various things to the police, and the events then occurring. It can be seen that the conversation between the applicant and the police was a continuous one, during which there was no significant pause whilst the applicant stopped speaking. In particular, it is not the case that the applicant spoke freely with regard to the discs that showed sexual activities of adults (whether strangers, or himself and his wife), but then remained silent with regard to the discs containing child abuse material. To the contrary, as I have said, there was a flow of conversation between the applicant and the police as Senior Constable Jones produced the various items from the gun safe. It is perfectly true that, for many years, the criminal justice system has firmly set its face against drawing inferences from a suspect or accused exercising his or her right to silence, whether outside the courtroom (Petty v The Queen; Maiden v The Queen) or within it (RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3; Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25). But that was not the case here. As I have said, as a matter of evidence the applicant exercised his right to silence neither completely (that is, by saying nothing at all about the contents of the safe), nor even partially (that is, by commenting on some items as they were produced, but not others). As I have said, there was a flow of discussion on his part. And at no time during those discussions did the applicant say to the police that he did not recognise any of the discs produced from the safe.

90. In respect of the complaint that the prosecutor failed to comply with the rule in Browne v Dunn, thereby depriving the appellant of an opportunity to explain why he did not say more on the night, I also consider this complaint to be misconceived.

91. The authorities relied on by the prosecution illustrate the proposition enunciated in Murphy: that at its core, the rule in Browne v Dunn requires that the person affected know of the critical issues to be addressed and of any significant credible material which is adverse to the affected person. It is not ordinarily necessary to put to a party any matter which is in any event clearly in issue: Murphy at [152].

92. When regard is had to the totality of the prosecutor’s cross-examination, it is evident that she was fairly and squarely confronting the appellant about his version of events and suggesting that his version was a self-serving fabrication. The appellant had ample opportunity to explain his state of mind on the night in question.

93. I consider that nothing further was required by the Magistrate. For these reasons, none of the grounds set out in ground (i) are made out.

94. The remaining ground can be dealt with briefly. The Magistrate referred to the issue of self-defence as follows: On [the appellant’s] version, [the complainant is] followed to the kitchen and next to air-conditioning controls, which are described as position 3 on Exhibit D8 by him. He disarmed her. He did that by a one-handed choke or application of force to her neck, pushing her head upwards and her body against the wall. That allowed her to not be able to see what was going on with the knife, and he took the knife off her. In my view, if this was [self-defence], it was not excessive in the circumstances. The force, and application of it, was enough to achieve the end. She was disarmed and she was not harmed in any particular way other than - in my view, it's established beyond reasonable doubt - there were some red marks caused to her neck.

95. It is plain that the Magistrate was flagging that if the appellant’s version about what happened with respect to the third count was accepted, that the issue of self-defence would then arise. The Magistrate also foreshadowed that in that event, he did not consider the force used by the appellant was excessive.

96. It is clear from that that the question of self-defence only arose on the appellant’s version of events, and in rejecting that version of events the Magistrate, by necessary implication, did not need to return to the issue of self-defence, as his ultimate conclusion was the appellant was not telling the truth.

97. In these circumstances, it was not necessary for the Magistrate to indulge in any lengthy discourse about the principles which apply when self-defence is raised as an issue.

98. It follows from the foregoing that I am satisfied after my own independent review of the whole of the evidence, that there was sufficient evidence before the Magistrate to find beyond reasonable doubt that each of the three offences had been proved.

99. Moreover, the appellant has not demonstrated any error in the reasoning of the Magistrate or in his Honour’s approach to the evidence. Orders

100. It follows that this appeal should be dismissed.

I certify that the preceding one hundred [100] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Kelly. Associate: Date: