Gamage v Snelleksz [2025] ACTSC 239

1. On 17 May 2024, Chief Magistrate Walker found Malith Kodagoda Gamage (the appellant) guilty of one count of reckless threat to kill contrary to s 30 of the Crimes Act 1900 (ACT) (CC2023/1858); one count of stalking contrary to s 35 of the Crimes Act (CC2023/4009); one count of threaten to distribute intimate images contrary to s 72E of the Crimes Act (CC2023/1857); and, three counts of distribute intimate images of another person contrary to s 72C of the Crimes Act (CC2023/1859–61).

2. The appellant appealed these convictions. The grounds of appeal particularised in the appellant’s Amended Notice of Appeal were as follows: (a) The learned Chief Magistrate erred by failing to give effect to the Murray direction given; (aa) The learned Chief Magistrate made specific error in finding the complainant— (i) Discovered intimate images on her Toshiba laptop, or that it was reasonably possible for her to do so, between February and March 2021; and (ii) Used or was able to use her Toshiba laptop, or that the Toshiba laptop was functioning, at any time between discovering intimate images on it and 10 July 2021; (b) The learned Chief Magistrate erred by failing to take into account the lies told by the complainant in assessing the complainant’s credibility; (c) The learned Chief Magistrate erred by failing to give adequate reasons for not taking into account the lies of the complainant; and (d) The findings of guilt are unreasonable or cannot be supported by having regard to the evidence.

3. These grounds of appeal are interrelated. The appellant’s primary complaint is that the Chief Magistrate erred in finding the complainant to be a witness of truth. In particular, the appellant contends that the complainant’s evidence was contradicted by the expert evidence of a digital forensics expert. As the complainant’s evidence was crucial for each of the counts, the appellant submits that the Chief Magistrate should have acquitted the appellant of all counts.

4. For the reasons outlined below, the complainant’s evidence was not inconsistent with the evidence of the digital forensics expert. It was well open to the Chief Magistrate to reject the appellant’s contention that the complainant had lied. It was also well open to the Chief Magistrate to accept, beyond reasonable doubt, the complainant’s evidence as credible and reliable. It follows that the appeal must be dismissed. Background

The prosecution case

5. The appellant and the complainant were in an intimate relationship from late 2016 to sometime between mid-2020 and early-2021. During this time, they were both married to other people. The relationship between the appellant and the complainant deteriorated throughout its timeline.

6. The prosecution alleged that between 31 December 2018 and 9 April 2021, the appellant stalked the complainant by verbally abusing her, sending her pornographic videos, taking intimate images of her and not deleting them, making threats to her, attending her work and temple, and accessing her private data (CC2023/4009: stalking).

7. Throughout the course of the relationship, the appellant would take intimate photographs of the complainant with her consent. The complainant would also take intimate photographs of herself and would send them to the appellant. The complainant understood that these photographs would be deleted. The prosecution alleged that, on a date between 30 November 2020 and 1 January 2021, the appellant threatened the complainant that he would distribute these intimate images of her to other people (CC2023/1857: threat to distribute intimate image).

8. On a date between 1 February 2021 and 31 March 2021, the appellant and the complainant had a verbal disagreement at a house they were living at together in Scullin. During this disagreement, the complainant went to her car. The prosecution alleged that the appellant yelled words to the effect of “if I see you with someone else or I find out you’re going with some other man, I’m going to kill you both or I will kill you” (CC2023/1858: reckless threat to kill).

9. On 28 February 2021, the complainant’s estranged husband received three emails sent from the complainant’s Gmail account. These emails each contained intimate images of the complainant. It was alleged that the appellant accessed the complainant’s Gmail account and sent these emails to her estranged husband (CC2023/1859, CC2023/1860, CC2023/1861: distribute intimate image).

The evidence in the proceedings before the Chief Magistrate

10. The hearing before the Magistrate proceeded over six days, between October 2023 and March 2024.

11. In that hearing, the prosecution called evidence from the complainant, her former housemate, Constable Shannon Snelleksz (the informant), Constable Jessie Bowes and Mr Phillip James Goodwin (a digital forensics expert).

12. In brief, the complainant gave evidence that she first met the appellant through her landlady in April or May 2016, and they soon became friends. The appellant later provided driving lessons to the complainant, and “sometime in October and November 2016”, during one of these lessons, the two “became intimate with each other”. From this time, the two engaged in casual sexual intercourse approximately once every month or two.

13. The complainant moved in with the appellant in November 2018. After this time, the appellant started taking intimate images of the complainant during sexual intercourse. He would say to her: “I’m just making it to have a look, and later on we will delete it”. The appellant also recorded sexually explicit video calls between himself and the complainant, without the complainant’s knowledge. During a short trip to Broulee, the appellant took intimate images of the complainant while she was intoxicated and in a bath. The complainant did not consent to the taking of those images. When she saw the appellant taking the intimate images, she told him to delete them. She believed that he did so.

14. The complainant gave evidence that the appellant became increasingly possessive and controlling throughout the course of their relationship. He would frequently criticise her, question how she spent her time, make negative comments about her weight, and call her “crazy”.

15. In February 2021, the complainant travelled to Cairns with another man. Soon after, in March 2021, the complainant decided to move out of the appellant’s home, as the relationship had grown “ugly”. As the complainant was moving out, she heard voices coming from the appellant’s bedroom. Recognising one of the voices to be her own, the complainant went to the appellant’s bedroom and discovered him playing the intimate recordings of their video calls. The appellant cried and told the appellant to delete the videos. As the complainant left his house, the appellant yelled out: “If I see you with someone else or if I find out you are going out with some other man”, “I’m going to kill you both”.

16. In late 2020, the appellant threatened to send the intimate images of the complainant to other people, including to her brother. The complainant gave evidence that the accused once repaired her laptop and changed “all of [her] passwords”, including the password to her Gmail account.

17. In respect of the intimate images the subject of CC2023/1859, CC2023/1860 and CC2023/1861, the complainant gave evidence that she had first seen the intimate images in late February/ early March, whilst she was attempting to attach a file to an email. She explained that she clicked the “attach button” and pressed “attachment”. She said that when she did this, “heaps of my photos came over there. They were my nude photos … and videos.” The complainant said that this occurred whilst she was at her workplace. She said that the images were in her “email”. She could not say whether they were in her Gmail account, or on the hard-drive of her computer.

18. The complainant maintained that she had no knowledge that the intimate images had been distributed until 10 July 2021, when her estranged husband forwarded three emails which appeared to have been sent to him from the complainant’s email account, which attached intimate images. The complainant denied sending the emails to her estranged husband.

19. The complainant reported the distribution of these images to police that same day.

20. Following the complainant’s complaint to police, the police seized the complainant’s Toshiba laptop. Two days later, on 12 July 2021, the police executed a search warrant on the appellant’s home. In the execution of this warrant, the police seized a Lenovo laptop computer and other electronic devices.

21. Mr Goodwin, a Senior Digital Forensic Examiner at the Australian Federal Police, gave evidence about the examinations that he had performed upon these devices.

22. In respect of the appellant’s Lenovo laptop, Mr Goodwin found no history of any records of access to the complainant’s email account; nor did he find any intimate images, including those the subject of CC2023/1859, CC2023/1860 and CC2023/1861, on that device.

23. Mr Goodwin’s evidence with respect to the complainant’s Toshiba laptop was as follows: (a) an internal Seagate hard drive was installed on the Toshiba laptop, which was not the original hard drive that had been installed on that device. The original hard drive could not be identified, located or seized; (b) on 24 February 2021, the user of an unknown Lenovo laptop (which was not the appellant’s Lenovo laptop seized from the appellant’s home on 12 July 2021) transferred a number of intimate images of the complainant to the device, conducted a fresh Windows 10 installation and deleted certain Windows operating files which were essential for its functioning; (c) as a result of the action described at (b) above, the internal Seagate hard drive could not boot into Windows 10, which made the laptop inoperable from the moment that the Seagate hard drive was installed; and (d) the date on which the internal Seagate hard drive was installed is unknown, although it would have occurred sometime between 24 February 2021 and 10 July 2021 (the date that the complainant gave her Toshiba laptop to police).

24. The complainant was not able to say when the Seagate hard drive had been installed in her computer. She was not aware of the fact that the computer’s original hard drive had been replaced at the time that she went to police.

25. The prosecution also tendered several exhibits. These exhibits relevantly included Mr Goodwin’s expert report; a copy of an email from the complainant’s estranged husband dated 10 July 2021, entitled “regarding photos from Malith”, which attached a number of intimate photographs of the complainant (Exhibit 2); and emails forwarded to the informant by the complainant’s estranged husband, which were apparently sent from the complainant’s email account on 28 February 2021, and which contained intimate images of the complainant (Exhibit 7). These latter emails were the subject of CC2023/1859, CC2023/1860 and CC2023/1861 (the distribute intimate image charges). The intimate images the subject of these charges were not tendered, but it was an agreed fact that those images attached to the emails were “intimate images”.

26. After conducting an examination of all the data storage devices seized during the investigation, Mr Goodwin located copies of 8 of the 10 intimate image email attachments that relate to the present counts. In total, there were 24 files that matched these attachments found across two Western Digital USB hard drives, both of which were seized from the appellant’s home, and the Seagate hard drive installed in the complainant’s laptop.

27. The appellant gave evidence denying the allegations.

28. In brief, the appellant accepted that he consensually took intimate images of the complainant throughout the course of their relationship. He accepted that he had used both his phone and the complainant’s phone to take intimate images of the complainant while staying at the complainant’s brother-in-law’s home in Kirrawee, Sydney in December 2019. The appellant further accepted that he had taken intimate images of the complainant while they were on a trip to Broulee together in mid-2019. The appellant told the court that he only took intimate images of the complainant with her consent, and that the complainant only asked him to delete an intimate image on one occasion in early January 2020, which he did. The appellant denied the allegation that he had threatened to distribute these intimate images to the complainant’s brother. The appellant maintained that he did not use the complainant’s Gmail account to send intimate images to the complainant’s husband.

29. The appellant gave evidence that his relationship with the complainant ended following a series of arguments they had in early 2021. The first of these was on 13 January 2021. The appellant said the complainant confronted him for telling the complainant’s sister-in-law that the complainant had been speaking negatively of her. The appellant gave evidence that, during the argument, the complainant had jumped on him and struck him three times. He said that the complainant then used his phone to call the appellant’s wife, and told her that the two of them had been having an extra-marital affair since 2016.

30. The appellant said that a second argument occurred on 10 February 2021. The appellant said that he and the complainant were talking about their relationships with their respective spouses at the appellant’s home. The appellant said that he told the complainant that he informed the complainant’s husband of the events of 13 January 2021. The complainant then became upset and threw her chai latte and other items at the appellant.

31. The appellant also gave evidence about a final argument, which he said occurred on 14 February 2021. The appellant said the complainant was angered after observing the appellant on a video call with his wife. The appellant said the complainant spat at him and then left the house.

32. The appellant gave further evidence either denying that he ever engaged in the alleged conduct giving rise to the stalking charges, or suggesting that his innocent conduct had been significantly misrepresented by the complainant to appear nefarious. For example, he admitted attending the complainant’s workplace, but said that he did this to deliver food to the complainant on her request. The appellant accepted that he made copies of the complainant’s Google location data, but maintained that the complainant was with him as he did this. The appellant denied ever accessing the complainant’s Outlook or Gmail accounts. He denied ever attending the complainant’s temple with the sole purpose of seeing her. He said that he went to the temple because it is in close proximity to a Buddha statue, which he worshipped.

The Chief Magistrate’s decision

33. In a judgment delivered on 17 May 2024, the Chief Magistrate found the appellant guilty of all charges.

34. In that judgment, the Chief Magistrate first set the out the various directions that applied to the determination of the issues before her. These included a Murray direction (that the evidence of the complainant be “carefully scrutinised”); a circumstantial evidence direction; a Liberato direction; a Markuleski direction; a warning concerning the fact that English is a second language for both the complainant and the appellant; and a good character direction.

35. After considering the evidence concerning the relationship between the appellant and the complainant and the digital forensic evidence at length, the Chief Magistrate confirmed that she had “scrutinised the evidence carefully”. The Chief Magistrate found that the complainant was a “compelling witness”. In making this assessment, her Honour noted that the complainant remained open, honest and clear in giving her evidence, despite her “obvious embarrassment” in its subject matter. While the Chief Magistrate observed that the complainant’s evidence at times lacked specificity, she made genuine attempts to tell the truth in accordance with her recollection of events that occurred over a five year period, and observed that her recollection of more traumatic events was “more vivid”. The complainant’s evidence was presented matter-of-factly and without exaggeration. As such, her Honour accepted the complainant as a “witness of truth”.

36. In so finding, her Honour accepted the complainant’s evidence that she had first discovered that the intimate images had not been deleted when she attempted to include an attachment to an email on her Toshiba computer. The Chief Magistrate rejected the appellant’s contention that the complainant’s evidence in this respect was contradicted by the evidence of the digital forensic expert. In particular, her Honour observed that: (i) The Seagate hard drive may have been installed (rendering the laptop inoperative) after the complainant had discovered the intimate images when attempting to attach a document to an email; (ii) The date that the Seagate hard drive was installed on the complainant’s Toshiba laptop was not known; (iii) The complainant may not have attempted to use her Toshiba laptop much (or at all) after the Seagate hard drive was installed; (iv) The complainant need not have accessed the 10 July 2021 emails on her Toshiba laptop, which was likely not operable at that time. She may have accessed the 10 July 2021 emails on her smartphone. In this respect, the Chief Magistrate noted that the complainant had not been asked what device she read her estranged husband’s email on.

37. In contrast, the Chief Magistrate rejected the appellant’s account. Her Honour found the appellant’s evidence to be rehearsed, tailored to address the digital forensic evidence, and designed to “paint [the complainant] in a bad light at every opportunity”.

38. The Chief Magistrate contrasted the appellant’s “skills, opportunity and motive” to interfere with the complainant’s data with the implausibility of the complainant having had any role in sending the emails to her former husband. The Chief Magistrate asked rhetorically: If there had been some conspiracy between [the complainant and her ex husband] to create false emails to cause trouble for [the appellant], why had they waited until so long after [the complainant] and [the appellant] appear to have ceased contact? What possible benefit could there have been to either of them in doing this? Why would they work together when their relationship was so damaged that divorce was intended? Such a conspiracy appears highly implausible.

39. Her Honour considered that the appellant’s evidence that he installed the Windows operating system on the hard drive, then the images, then removed the operating system from the hard drive, all to give the victim these images to be “entirely illogical”. In so finding, her Honour quoted from the digital forensic evidence: “[t]here is no obvious legitimate purpose for manipulating the hard drive in this way”.

40. The Chief Magistrate also observed that whilst neither the complainant, nor her brother, had any reason to “intentionally render her laptop inoperable”, the appellant had a motive to do so “as an act of revenge” against the complainant “who had scorned him in favour of another” (apparently a reference to the complainant having travelled with a man to Cairns in February 2021). The Chief Magistrate also observed that “damaging the laptop was something well within [the appellant’s] capabilities as an IT specialist”.

41. Having addressed her assessment of the credibility and the reliability of each of the complainant and the appellant, the Chief Magistrate then turned to the elements of each of the charges. Her Honour found each element established, and convicted the appellant of each charge.

Jurisdiction

42. This Court’s jurisdiction to hear the present appeal is conferred by Part 3.10 of the Magistrates Court Act 1930 (ACT).

43. This is an appeal by way of rehearing: Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27 at [11]. The Court is required to “determine the correctness of the decision at first instance by undertaking a real review of the evidence and making its own assessment of the facts, while being mindful of the natural limitations of proceeding on the record”: King v Bishop [2024] ACTSC 114 at [7]. The onus is on the appellant to demonstrate a legal, discretionary or factual error in the Chief Magistrate’s decision: Alexander at [10] – [25]. Determination

Alleged factual error relating to the digital forensic evidence: Ground (aa)

44. In ground (aa), the appellant contended that the Magistrate erred in finding (i) that the complainant discovered intimate images on her Toshiba laptop, or that it was reasonably possible for her to do so, between February and March 2021; and (ii) that the complainant used or was able to use her Toshiba laptop, or that the Toshiba laptop was functioning, at any time between her discovering intimate images on it and her handing that laptop to police on 10 July 2021.

45. As this issue is the foundation of the other grounds of appeal, it is convenient to address this ground of appeal first.

46. The appellant contended that the Chief Magistrate should have found that: (a) The 28 February 2021 emails were not sent from [the appellant’s] Lenovo laptop because— (i) it did not, at any time, access [the complainant’s] Gmail address via webmail or otherwise; and (ii) it did not have intimate images stored or available to it at the time the emails were sent on 28 February 2021 emails. (b) Installation of the internal Seagate drive was the only means by which the Toshiba laptop was able to access the intimate images. (c) The Toshiba laptop was inoperable from the moment the internal Seagate drive was installed. (d) As a matter of logic, then, the 28 February 2021 emails could not have been sent from the Toshiba laptop. At the time they were sent, only one of two scenarios could have applied: (i) The internal Seagate drive had not yet been installed. The Toshiba laptop was fully functional as a Windows 10 computer, able to log into [the complainant’s] Gmail account and send emails from it. But it did not have access to the intimate images to include them as attachment [sic]; or (ii) [The Seagate hard-drive] had been installed. Whilst the Toshiba laptop theoretically had access to the intimate images, it could not boot and function as a computer. It was unable to access [the complainant’s] Gmail account or send emails. (e) Neither of the two laptops seized, nor any of the other devices, could have possibly sent the 28 February 2021 emails.

47. The appellant continued: As the two possible scenarios as to the state of the Toshiba laptop on 28 February 2021 are mutually exclusive, it follows, respectfully, that her Honou erred in concluding that there was no inconsistency in [the complainant’s] account with the objective computer evidence.

48. In summary, there are two issues which the appellant contends are inconsistent with the prosecution case. The first concerns the question of which computer the 28 February 2021 emails were sent; the second concerns the complainant’s evidence that she had seen the intimate images when she attempted to attach a document to an email in late February/ early March 2021.

49. With respect to both issues, the appellant’s submission makes assumptions which are not justified and fails to take account of other relevant evidence.

50. As to the first issue (the sending of the intimate images on 28 February 2021), it was not necessary for the prosecution to prove which device had sent the 28 February 2021 emails. All that was necessary for the prosecution to establish was that it was the appellant who had sent those emails. There was no dispute that the appellant had access to the complainant’s email address. He was able to access the complainant’s email account remotely, from any computer to which he had access.

51. As the Chief Magistrate observed, the appellant was living with the complainant in February 2021. The appellant could have sent the 28 February 2021 emails from the complainant’s smart phone. The appellant could also have sent the 28 February 2021 emails from the complainant’s Toshiba laptop computer at any time prior to the installation of the Seagate hard drive (noting that the digital forensic expert was unable to say when the Seagate hard drive had been installed on that computer).

52. Further, in the July warrant, police did not seize all of the devices which the appellant had access to in February of that year. There can be no doubt that it was the appellant was the person who re-imaged the Seagate hard drive. The digital forensic evidence confirmed that it was the appellant’s account that set up the Seagate hard drive [Decision at 21]. This was done from a Lenovo computer that was not found by police in the execution of the search warrant. It is then clear that, in February 2021, the appellant had access to at least one computer which was not subsequently the subject of forensic analysis. There is no reason why the February 2021 emails could not have been sent from that computer.

53. Finally, as the respondent submitted, the appellant’s contention that the 28 February 2021 email “conflates an absence of something with a positive finding that something did not occur”. Mr Goodwin’s evidence was that there was “no record” of the appellant’s Lenovo computer having accessed the complainant’s Gmail account, and “no record” of the specific images being located on that computer. Intimate images were found on external hard drives owned by the appellant. That the Lenovo computer did not have the intimate images on it, or accessible to it, when it was examined 7 months after 28 February 2021 is not determinative.

54. Accordingly, the Magistrate’s conclusion that the appellant had sent the 28 February 2021 emails was not contradicted by the evidence. It was possible for those emails to be sent by the appellant from a number of devices. It was not necessary for the prosecution to prove which.

55. As to the second issue (the complainant’s seeing the intimate images when she attempted to attach a file to an email in late February/ early March 2021), the Chief Magistrate found that: … [the complainant] could reasonably have accessed the Gmail account on her Toshiba laptop after the 28 February emails were sent but before the laptop was rendered inoperable by insertion of the Seagate hard drive.

56. There was no error in this finding. As outlined above, Mr Goodwin could not say when the Seagate hard drive had been installed in the complainant’s Toshiba laptop, other than that it was after 24 February 2021, and before the complainant gave the laptop to police on 10 July 2021.

57. The appellant’s submission is predicated on an assumption that if the complainant accessed the intimate images on her Toshiba laptop, she must have accessed them from the Seagate hard drive. This assumption is not justified.

58. The hard drive that had previously been installed in the complainant’s Toshiba laptop was never located by police. For this reason, Mr Goodwin was “unable to locate or determine any information about earlier data potentially held on the Toshiba laptop”. As observed earlier, the appellant had saved the complainant’s intimate images on a number of his external hard drives. He had also saved the complainant’s intimate images on the Seagate hard drive that was ultimately installed on the Toshiba laptop. There was no impediment to the appellant saving the complainant’s intimate images on the hard drive which was previously installed on the complainant’s Toshiba laptop prior to the installation of the Seagate hard drive. If, as the Chief Magistrate suggested, the appellant had used the complainant’s Toshiba to send the 28 February 2021 emails to the complainant’s estranged husband, it would be expected that when the complainant next attempted to use that computer, the previously saved (and attached) images would be seen by her at that time.

59. Accordingly, the Chief Magistrate did not err in finding that the complainant could have accessed her Gmail account on her Toshiba laptop, and seen the intimate images when she did so, in late February/ early March 2021.

60. This ground of appeal must be dismissed.

Alleged failure to give effect to Murray direction: Ground (a)

61. As the appellant acknowledges, the Chief Magistrate properly gave herself a Murray direction as follows: Given the centrality of the evidence of [the complainant] to the prosecution case, I must carefully scrutinise that evidence in assessing the reliability and credibility of it: R v Murray (1987) 11 NSWLR 12.

62. Later in the judgment, the Chief Magistrate again referred to the Murray direction, stating “I have scrutinised the evidence carefully”.

63. In other words, this ground of appeal alleges that, despite stating that she would carefully scrutinise the evidence of the complainant, and despite stating that she had scrutinised the evidence carefully, the Chief Magistrate did not in fact do so.

64. This allegation should not be accepted. As outlined in response to ground (c) below, the Chief Magistrate’s reasons demonstrate that she did carefully scrutinise the complainant’s evidence. In essence, the appellant’s complaint is against the outcome of the Chief Magistrate’s assessment. For the reasons explained in respect of ground (d), this complaint should also be rejected.

65. Accordingly, this ground of appeal must be dismissed.

Alleged lies told by the complainant and their import to her credibility: Ground (b) Introduction

66. In ground (b), the appellant submitted that the complainant’s evidence was inconsistent with other evidence adduced by the prosecution, such that the Chief Magistrate ought to have concluded that the complainant had lied and could not be accepted as a witness of truth.

67. These alleged inconsistencies related to what the complainant told police and her evidence in court about: (i) her use of her Toshiba laptop computer prior to providing it to police; (ii) the language used by her ex-husband when forwarding her the emails (specifically whether the email was in English or Hindi); and (iii) the timing of when she first told police about the threat that the appellant had made to kill her.

68. These alleged inconsistencies are each addressed below.

The complainant’s evidence about the use of her Toshiba laptop

69. The appellant contended that the complainant lied when she told police that: (a) The Toshiba laptop was the laptop she was using as at July 2021; (b) She used the Toshiba laptop for emails and browsing the internet; (c) She was using her Toshiba laptop right up until she handed it to police on 10 July 2021; and (d) The Toshiba laptop was working when she handed it to police.

70. The appellant contended that the above account must have been false because the Toshiba laptop computer was not working at the time that the complainant handed it in to police, and had been inoperable since the Seagate hard drive had been installed on it.

71. This submission should not be accepted. The complainant’s evidence was not as definitive as the appellant’s submission implies: COUNSEL FOR THE ACCUSED: And you were using [your Toshiba laptop] – were you using it right up to the time you handed it in to police in July 2021? --- Yes. And do you have a recollection of using it before you handed it in to police in July 2021? --- I don’t remember when I used it last, but that was only laptop I have. I – I don’t use much computer, I don’t use much laptop. But I think you said before that it wasn’t working well when you handed it in to police? Is that right? --- No, that – that’s the only laptop I have. I just one day tried to start it and it was not starting, and then I handed it. I just told them that it – the – it’s keep buffering and it’s not starting though. When did you notice that it wasn’t working or not starting? --- Like, when I was about to give it, before that. So you checked it before you handed it in. Correct? --- Yes. And you saw that it wasn’t starting? --- Yes. And you handed it to police. Is that right? --- Yes. Yes. Did you tell the police that it wasn’t working? --- Yes, I told them. It was not starting. Working or not working, I don’t know. It was just not starting.

72. Further, later in the cross-examination, the following exchange occurred: COUNSEL FOR THE ACCUSED: I’m going to tell you some information that you won’t know that comes from a computer expert. As I told you before, the computer you handed in contained a Seagate hard drive and not a Toshiba hard drive. Okay? The Seagate hard drive that was in your computer did not work from 24 February onwards? --- Okay. You told this court that your computer was working in the early part of 2021. Correct? --- Yes. For how long before you handed this computer in to police had your laptop not been working? --- I don’t know. I did not – that incident happened that day. After that I did not check. I don’t do anything much on my laptop. When you say ‘that day’, what are you referring to? --- When that – I saw that images. Okay. So I think you told the court that the day you saw the images happened in March and probably after you moved out of the Scullin house. Is that right? --- I’m not sure. I’m not sure about that. Okay. So are you now saying that you didn’t use your laptop between about March 2021 and July 2021? --- I don’t remember, I’m sorry. I only used it if I used to do some – I need to some incident report or perhaps something. Apart from that I was not using much it (sic). Have you been told, madam, that the hard drive you handed in to police on 10 July 2021 contained some intimate images of you? --- Sorry? Did you know that there were some intimate images on your computer that police found? --- No. I don’t know.

73. Although the question asked by the cross-examiner at the commencement of this exchange accurately stated the effect of the expert evidence, it gave rise to a potential for confusion, particularly when asked of a witness for whom English was a second language, who was not familiar with the effect of the expert evidence.

74. Specifically, the question suggested that because the Seagate hard drive did not work from 24 February 2021, it followed that the complainant’s computer did not work from 24 February 2021. As explained above, this was not the effect of the expert evidence. Mr Goodwin’s evidence was that the complainant’s laptop would only have been inoperable from the date that the Seagate hard drive was installed. Mr Goodwin was not able to ascertain when the Seagate hard drive was installed. Accordingly, it could not be said that the expert evidence demonstrated that the complainant’s computer did not work from 24 February 2021.

75. Importantly, as can be seen from the above, the complainant’s evidence was not that she had used the laptop on a given date, or even within a proximate date range, prior to handing the laptop in to police. The complainant agreed with the cross-examiner’s proposition that her laptop was working “up to July 2021”. However, in the answer that immediately followed, she clarified that she did not use her laptop much, and that she had unsuccessfully attempted to check it before handing it to police. She was not asked when she last successfully used the computer. The complainant’s evidence was not contrary to the expert evidence.

76. Nor is it significant that, when the complainant attempted to boot the Toshiba laptop during her police interview and realised the laptop was not working, the complainant looked “really worried and concerned that she’d lost everything” and started to cry. Although the complainant accepted during cross-examination that she discovered the laptop was not functioning prior to her police interview, her response to the computer not starting up in in the interview is entirely consistent with the complainant having a lack of IT prowess, hoping that previous difficulties with starting the computer were not permanent, and then becoming stressed when she realised that she might not be able to show the police the images that she had seen, and that she may have lost other significant personal data.

The language used by the complainant’s estranged husband in the email dated 10 July 2021

77. The appellant submitted that the complainant had told the informant that the email she received from her estranged husband dated 10 July 2021 (Exhibit 2) was written entirely in Hindi, then later said during cross-examination that only “some words” were in Hindi. The appellant submits that both of these statements were lies, to the detriment of her credibility [AWS at [35]].

78. The appellant’s submission relates to the following evidence of the complainant in her Evidence in Chief Interview (EICI): Q603 And do you just want to just read out the email, like what it says and what time it was sent to you? A Um, um, it doesn’t say time on this one. … QA 604 No that’s okey. Did you want to just read the email to us? A This email is actually written in my language, not in English

QA 605 Oh, Okay. A But it’s – the words are in my – in Hindi language

79. The complainant then appears to read out the email. That answer is struck out in the EICI, presumably on the basis that agreed to be inadmissible hearsay evidence as the complainant’s former husband was not to be called to give evidence. (The prosecution application for him to give evidence via AVL having been refused by the Chief Magistrate).

80. Exhibit 2 was written in English. However, there is no foundation for the proposition that the complainant was speaking about Exhibit 2 when she said that “the email” was written in Hindi. (Indeed, the struck out portion of the EICI clearly demonstrates that the complainant was not reading Exhibit 2, but instead from an earlier email in the email chain between the two.)

81. As the respondent observed, this was implicitly accepted by the appellant during closing submissions at trial, where it was stated: [T]he combination of the fact that the complainant’s native language is Hindi, the fact that her husband’s native language is Hindi, and the fact that the initial email purportedly from her husband to her in July 2021 was in Hindi, begs the question why the subsequent emails in Exhibit 2 attaching the intimate images were in English. The readily available inference to be taken from this is that [the complainant’s husband], or whoever wrote the emails attributed to him, wanted Australian authorities to be able to read the emails at the time they were sent. (emphasis added)

82. Further, as the respondent also observed, during cross-examination, the complainant gave evidence that “some words” were in Hindi. The complainant was then asked about “one of the emails” sent to her by her husband in “July 2021”. The complainant responded that she could not “remember exactly” if some of those emails were written completely in English.

83. Accordingly, the appellant’s submission that the Magistrate erred in failing to find that the complainant’s evidence concerning the language that Exhibit 2 was written in must also be rejected.

The timing of the complainant’s first report of the threat to kill

84. The complainant did not tell police [redacted] that the appellant had made a threat to kill or pursued her in a car chase. She gave evidence that she did not forget to include these events, and that she told police “everything that was happening”.

85. The appellant submits that these statements are demonstrably untrue.

86. However, again, as the respondent submitted, the complainant’s evidence on this topic was not as definitive as the appellant’s submission suggests. COUNSEL FOR THE ACCUSED: Yes, sorry, I should have clarified. [Redacted], you did not include the fact of the defendant chasing you in his car. What do you say to that? --- I – whatever I remembered that time, I mentioned but I don’t – I don’t remember now, like, whatever was happening, I – I mentioned. So - - -? --- I don’t remember now, like, what I have written. Like, at that time, I was so stressed, I was scared. I just went and I said. So were you so stressed that maybe you didn’t mention to police that you had been chased by the defendant in his vehicle, driving dangerously behind you? --- I think I have mentioned because that was the time I got very scared of him when he – when he was following me very badly. So that’s something – but do you remember actually telling police about that or telling [redacted] about that? --- I told. I - I - I - I’m very hopeful that I have told that, that he was driving very dangerously behind me. Who did you tell and when? --- I mentioned it – I mentioned it when they asked me that - - - To whom did you mention? --- I – I’m – [redacted]. I’m – I’m sorry, I’m so confused now. I don’t – but I have told this, that he’d – he’d – he dangerously drived behind me. I’m going to make a suggestion to you - - -?---I’m sorry. You did not tell police or the court about him dangerously driving behind you on 14 February, is that true or not true? --- I don’t remember, I’m sorry.

87. In short, as the respondent submitted the complainant was “unsure of specifically what she said and when she said it”. The Chief Magistrate was not bound to conclude that this evidence constituted a lie.

Conclusion

88. For the reasons outlined above, the appellant has not demonstrated that the Chief Magistrate erred in failing to find that the complainant had told material lies which undermined her credibility. This ground of appeal must be dismissed.

Adequacy of the Chief Magistrate’s reasons: Ground (c)

89. Ground (c) contends that that the Chief Magistrate erred in failing to provide adequate reasons for not taking into account the lies told by the complainant.

90. In particular, the appellant contended that the Chief Magistrate’s reasons were insufficient because: (a) The reasons did not provide a “comprehensive explanation” of the regard taken to the “crucial” defence submissions that the complainant was lying and was not a credible witness. (b) The reasons did not articulate why the complainant was a truthful witness, save for reference to independent corroboration. (c) The reasons did not address all aspects of the complainant’s evidence which were submitted to be lies.

91. A failure to provide reasons is not established by simply demonstrating that the reasons provided were not convincing: Porter v The Queen [2024] ACTCA 9 at [89]. Reasons will only be inadequate if the appeal court is unable to ascertain the reasoning upon which the decision is based, or justice is not seen to have been done: Poidevin v Coutts [2024] ACTSC 91 at [86], citing Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18.

92. Where, as here, an appeal is by way of rehearing, a finding of a failure to provide adequate reasons will not result in the setting aside of the decision below if the appellate court is otherwise satisfied that the decision of the court below was correct: Wolter v Broomhall [2023] ACTSC 331 at [87]; Koschier v The King [2024] NSWCCA 24; 113 NSWLR 491 at [40].

93. Consideration of any complaint concerning the adequacy of a magistrate’s reasons must take proper account of the pressures placed on busy magistrates: Acuthan v Coates (1986) 6 NSWLR 472; 24 A Crim R 304 at 479; DPP (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402 at [15]; Wolter v Broomhall [2023] ACTSC 331 at [63] – [64]. This consideration extends not only to the delivery of ex tempore decisions, but also to reserved decisions. As Taylor J explained in Poidevin, reserved judgments “only [add] to the ongoing pressures of the relentless workload” of a magistrate: Poidevin at [100]. For this reason, it is not necessary for a magistrate to expressly reject each individual submission that is made on behalf of any accused: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271.

94. Any complaint about the adequacy of a magistrate’s reasons must also be assessed against the submissions that were made at first instance. As outlined at [80] above, the appellant’s contentions concerning the complainant’s alleged false evidence concerning the language that Exhibit 2 was written in was not made at trial. The Chief Magistrate’s reasons cannot be impugned for failing to address an argument that was not made. It may be observed that the Chief Magistrate recognised, and rejected, the argument that was made in the proceedings below (namely, that it was suspicious that the language in the email switched from Hindi to English). No complaint was made about this finding on the appeal.

95. Contrary to the appellant’s submissions, the Chief Magistrate expressly addressed the defence contention that the complainant had lied, in particular, concerning the intimate images which the complainant saw on her laptop. The Chief Magistrate found that the appellant’s contentions in this respect “somewhat misapprehends the evidence”, and explained that the expert evidence was that the Seagate hard-drive was “loaded as described” on 24 February 2021, not that it was “placed in the Toshiba laptop that day”. Her Honour returned to this issue after carefully considering the effect of the expert evidence later in the judgment and concluded: I am satisfied that on a close assessment of the evidence, that [the complainant’s evidence that she viewed the intimate images on her laptop after 28 February 2021] is not inconsistent with the laptop being rendered inoperable by insertion of the Seagate hard drive after she had stumbled over the attachments, whether on the laptop or on her phone.

96. This finding adequately addressed the appellant’s submissions that the complainant had lied about her use of the laptop in the period before she handed it to police.

97. The Chief Magistrate also made findings concerning particular aspects of the complainant’s account which were corroborated, including, for example, the evidence that the appellant was able to access the complainant’s Gmail account remotely (as demonstrated by the evidence that the appellant accessed the complainant’s Google Maps data on 14 March 2021 and her Outlook webmail on 26 March 2021). In this respect, the Chief Magistrate also observed that the appellant’s explanation that he had accessed the complainant’s map data with her and at her request was contradicted by the evidence which established that the complainant was at the Belconnen Police Station at the time that he accessed that data.

98. Her Honour also addressed the complainant’s evidence concerning when her relationship had ended, finding that the complainant’s “superficially false statement” (apparently referring to the evidence that the complainant had a sexual relationship with the appellant as late as August 2020) was explained by the fact that the complainant was trying to end the relationship from July 2021, which was “not inconsistent with the ongoing contact, even sex, with [the appellant]”.

99. The Chief Magistrate made detailed findings about the complainant’s credibility, noting that “she did not play the victim”, and that she was “uncomfortable giving evidence”, particularly concerning intimate relationship issues and images. She found that the complainant was “honest, “open” and “patient” and that she “did not try to over-egg the pudding”. The Chief Magistrate explained the basis of these conclusions, in particular noting that the complainant was “clear … that [the appellant] never harmed her” and that the complainant frankly “acknowledg[ed] the positive things that [the appellant] had done for her”.

100. The Chief Magistrate also found the circumstances in which the complainant reported the conduct to police to be credible. In particular, she accepted the complainant’s explanation that she was reluctant to make a report to police, because she did not want to jeopardise the appellant’s permanent residency application and felt bad for him, but, when presented with evidence that the appellant had sent intimate images to her estranged husband in India, she opted to press charges. [DT 20]

101. The Chief Magistrate addressed the complainant’s reliability, and observed that the complainant’s recollection was at times “limited or lacked specificity”. However, her Honour found that the complainant’s lack of recollection did not adversely affect her credibility, accepting that the complainant had “made a genuine effort to tell the truth”. The Chief Magistrate found that the complainant’s memory was more vivid (and hence reliable) in relation to the more traumatic events that had occurred.

102. In short, as the respondent submitted, the Chief Magistrate gave clear reasons for accepting, beyond reasonable doubt, the complainant’s evidence concerning the commission of the offences to be both honest and reliable. It follows that this ground of appeal must be dismissed.

Whether findings of guilt are unreasonable or cannot be supported by the evidence: Ground (d) The test to be applied

103. Ground (d) alleges that the findings of guilt are unreasonable or cannot be supported by the evidence.

104. The appellant submitted that the relevant test was set out in M v The Queen [1994] HCA 63; 181 CLR 487; that is, “[t]he court must ask itself … ‘whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.”

105. Although it is open to an appellant in an appeal against a Magistrate’s decision to rely on a ground of appeal that alleges that the decision was unreasonable, it is not necessary for the ground to be “pitched at that level” in order to succeed: Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27 at [17], citing McFarlane v Van Eyle [2022] ACTCA 68 at [97] – [98].

106. As outlined above, as the standard of review in an appeal to this Court from a Magistrate’s decision is the correctness standard, the appellant need only demonstrate that the decision is attended by legal, factual or discretionary error: Alexander at [18].

107. However, when considering whether there is factual error in a Magistrate’s decision, the appellate court must observe the ‘natural limitations’ of proceeding on the record, including, as observed in Fox v Percy [2003] HCA 22; 214 CLR 118 at [23]: …the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witness’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. See also Alexander at [20].

Application

108. The appellant contends that it is not open to this Court to be satisfied beyond reasonable doubt because: (a) The Chief Magistrate’s assessment of the complainant as a witness of truth was premised on the incorrect conclusion that her account accorded with the evidence of Mr Goodwin; (b) The complainant’s evidence that she accessed or saw the intimate images on her Toshiba laptop, and that the laptop continued to work until shortly before she took it to police is not supported by the forensic computer evidence.

109. The appellant contends that, in the absence of any other evidence consistent with the appellant sending the emails from the complainant’s email account on 28 February 2021, a conclusion should be reached that the appellant was not guilty of the charges that he distributed intimate images. The appellant contends that, on the whole of the evidence, it was not open for her Honour to be satisfied beyond reasonable doubt that the appellant is guilty of any offence.

110. For the reasons outlined above, neither of the propositions asserted at (a) and (b) above should be accepted. For the reasons there explained, the digital forensic evidence did not contradict the complainant’s evidence.

111. Of course, the digital forensic evidence did not directly prove the prosecution case. Nonetheless, the digital forensic evidence provided general support for the complainant’s account. In particular, it established that there were 24 intimate image files spread across two Western Digital USB hard drives, both of which were seized from the appellant’s home, and the Seagate hard drive installed in the complainant’s laptop; that on 24 February 2021, the operator of the appellant’s user account placed the intimate images onto the Seagate hard drive; [Goodwin report at 12; AB237] and that the operator of the appellant’s user account had accessed the complainant’s Outlook webmail account on five occasions throughout March and April 2021, being after the relationship the appellant and complainant had ended [Goodwin report at [6.3]; ABA 233]]. This latter evidence supported the complainant’s evidence that the appellant knew the password to her email.

112. It was not necessary for the digital forensic evidence to demonstrate more. The complainant gave evidence that she had not sent the 28 February 2021 emails to her estranged husband. The appellant had access to the complainant’s email address and they were in the process of breaking up on 28 February 2021. The complainant’s evidence was that the appellant had previously threatened to send her intimate images to her family members. The images were not otherwise in the public domain, and there was no suggestion that there was any other person who had the motive, means, or opportunity to send the complainant’s intimate images to her estranged husband. Provided the complainant’s evidence was accepted as credible and reliable, the circumstantial case against the appellant in respect of the charges of distribute intimate images was strong.

113. It was open to the Chief Magistrate to accept the evidence of the complainant as credible and reliable beyond reasonable doubt. Her evidence was not contrary to any “incontrovertible facts or uncontested testimony”, nor was it “glaringly improbable or contrary to compelling inferences”: Fox v Percy [2003] HCA 22; 214 CLR 118 at [28] – [29]. As has been long recognised: When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross-examined before the judge, the Court is sensible of the great advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the relative credibility of witnesses from written depositions; and when the question arises which witness is to be believed rather than another, and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the judge who saw the witnesses. (Coghlan v Cumberland (1898) 1 Ch 704 at 704 – 705, emphasis in original)

114. The appellant has not demonstrated that the Chief Magistrate’s decision was unreasonable, nor that it was infected by any legal, factual or discretionary error.

115. Accordingly, this ground of appeal must be dismissed.

Orders

116. For the above reasons, the appeal should be dismissed. I certify that the preceding one hundred and sixteen [116] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate: H Clift Date: 10 June 2025