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1. Wayde King was charged in the Magistrates Court with an offence of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT).

2. The offence was alleged to have been committed between 9 and 20 October 2021 against Mr King’s on-again, off-again domestic partner, Nicole Francis. During that time, Mr King was on bail on condition that he undertake a residential drug rehabilitation program. However, he had been discharged from that program and, contrary to the conditions of his bail, had not immediately presented himself to the court.

3. There was no question that Ms Francis had been assaulted at some point between the dates charged. The issue at the hearing was whether it was Mr King who assaulted her. An email sent from her email address at 2:07am on 30 October 2021 recorded that he had come to her house and tried to kill her. The email stated that she had been “hit hard more than once and suffocated repeditly (sic)”; that he had “sliced with a razor across [her] face” and that she was scared and had a lot of injuries. The email asked police to support her application for relocation to a new address and begged the police officer to let her know as soon as Mr King was in gaol so she could relax.

4. The police officer who received the email arranged for other officers to conduct an urgent welfare check on Ms Francis. Those officers observed Ms Francis to have yellowing bruises on her face and a healing cut under her left eye. Ms Francis told them Mr King was responsible for her injuries. She refused to make a statement, for fear of reprisal, but later sent police a screen shot of a message she had sent to Mr King forwarding photographs of the fresh cut under her eye.

5. Mr King pleaded not guilty and the hearing was fixed for July 2022, some nine months after the alleged assault. By the time of the hearing, Ms Francis had become hostile to police. Shortly before the hearing date, she named someone else as the person responsible for the assault and told police to leave her alone. She refused to attend the hearing and had to be brought to court on a warrant. In evidence at the hearing, she agreed that she had been assaulted in October 2021 “but not by Wayde”. She said the cause of the cut was that she “had something thrown at [her]” by an unknown person one night in the suburb where she lived. She denied any recollection of the email, denied Mr King had assaulted her, said she was not scared of him and professed her love for him.

6. On 31 March 2023, the magistrate found Mr King guilty of the offence. Mr King now appeals from his conviction. He is referred to in the balance of this judgment as the appellant. Nature of the appeal

7. An appeal from a conviction for an offence dealt with by the Magistrates Court is governed by Division 3.10.2 of the Magistrates Court Act 1930 (ACT). The features of such an appeal specified in s 214 of the Act (which include an obligation to have regard to the evidence given before the magistrate, the power to draw inferences of fact and a qualified obligation to admit further evidence) indicate that it is an appeal by way of rehearing, a process that requires the appellate court 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.

8. However, the process for determining the correctness of the decision at first instance is not at large. As explained by the Court of Appeal in Alexander v Bakes [2023] ACTCA 49 at [22] (Mossop, Baker and Abraham JJ), the onus is on the appellant to demonstrate legal or factual error and it is for the appellant to specify the contended error.

9. Mr King’s amended notice of appeal specifies the following grounds of appeal: a. that the finding of guilt was unreasonable and cannot be supported by the evidence; b. the learned magistrate erred in applying the Murray direction; c. the learned magistrate erred in admitting Exhibit 7 into evidence; Particulars: Section 69 of the Evidence Act 2011 (ACT) had no application to Exhibit 7; d. the learned magistrate erred in not remedying a breach of the Browne v Dunn principle; Particulars: the contents of Exhibit 7 were not put to Nicole Louise Francis and no consequences flowed from that failure. e. the learned magistrate erred in allowing into evidence the opinions of Senior Constable Bridget O’Sullivan. Particulars: Section 78 of the Evidence Act 2011 (ACT) had no application to the witness’ opinion that Nicole Louise Francis was the author of Exhibit 2.

10. The first ground, that the finding of guilt was unreasonable and cannot be supported by the evidence, is one that is commonly relied upon in appeals against conviction from the Magistrates Court to this Court. As Kennett J explained in McFarlane v Van Eyle [2022] ACTCA 68 at [97]-[98], while an appellant does not need to make out “a ground pitched at that level” in order to succeed, it is a proper ground of appeal. That analysis was approved in Alexander v Bakes at [17]-[18].

11. In an appeal against the verdict of a jury of the kind created under s 37O(2) of the Supreme Court Act 1933 (ACT) or s 6 of the Criminal Appeal Act 1912 (NSW), it is often logical to deal with a ground that the verdict is unreasonable and cannot be supported by the evidence before dealing with any ground alleging specific error, such as a wrong decision on any question of law, a misdirection or miscarriage of justice on any other ground. The reason for taking that course in such appeals is that the establishment of a ground that the verdict is unreasonable and cannot be supported by the evidence results in an acquittal outright, whereas the establishment of specific error may only result in an order for a retrial.

12. An appeal such as the present, which is by way of rehearing, will not ordinarily have the same imperative. The convenient order in which to address the grounds of appeal in an appeal by way of rehearing will depend upon the grounds alleged in any particular case. In his written submissions on the appeal, the appellant “conceded” that, as a rehearing requires this Court to review the evidence before the magistrate, the evidence he contends should not have been admitted can nonetheless be taken into account for the purposes of determining the unreasonable verdict ground. With respect, that would be a wrong approach. The fact that the appeal is by way of rehearing cannot mandate the consideration of inadmissible evidence. The logical approach in the present appeal is to adopt the course taken by prosecution of addressing the specific errors first (in reverse order) and then considering, in light of the conclusions reached on those grounds, whether the evidence supports a finding of guilt.

13. As to the ground that the finding of guilt was unreasonable and cannot be supported by the evidence, the nature of the Court’s task was helpfully explained in Alexander v Bakes. The Court of Appeal noted at [23] that, “[i]f an appellant identifies the ground of appeal from the Magistrates Court as being that the verdict is unreasonable, the Court will proceed on the basis that the appellant challenges the Magistrate’s ultimate factual finding”. The correct approach to that task invokes the well-established principles stated by the High Court in respect of an unreasonable verdict ground following a trial by jury, conveniently summarised in Alexander v Bakes at [14] as follows: In contrast, when considering whether a verdict is unreasonable, the Court must ask itself “whether it thinks that upon the whole of the evidence it was open to [the Tribunal of fact] to be satisfied beyond reasonable doubt that the accused was guilty”: M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492-495; and see Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651 at [7]-[8]; Lang v The Queen [2023] HCA 29; (2023) 97 ALJR 758 at [251].

14. Before making that assessment, it is necessary to review the evidence in detail.

Review of the evidence

The email and the welfare check

15. The offence for which the appellant was on bail in October 2021 was a matter in which Ms Francis was a witness. His bail conditions included a condition prohibiting him from contacting her unless it was in relation to the parenting of their child. The appellant was due to appear in court in those proceedings on 28 October 2021. He did not attend court as required.

16. On the afternoon of Thursday 28 October 2021, the informant in those proceedings, Leading Senior Constable Bridget O’Sullivan, sent an email to Ms Francis as follows: Good Afternoon Nicole Please be advised Wayde KING did not attend court today as required and a warrant will be issued for his arrest. I will update you again if anything changes. Bridget.

17. At 2:07 am on Saturday, 30 October 2021, Senior Constable O’Sullivan received a reply to her email as follows (as it appeared): I know he came to my house and tried to kill me. Can you please take me and my son off this case. I don’t want to be added to his bail conditions or the paperwork and I am in danger and terrified. He has been turning up daily and trying to talk to me. I need help I need to get out of this house and I need to be taken off this court case PLEASE. I don’t want to live like this and I can’t do this anymore Bridgette. I need this to end and I am begging you to take my name and his sons off his bail conditions. I can’t be involved in any of this or be a victim anymore. PLEASE DON’T PUT US ON THE BAIL CONDITIONS I AM TRYING TO PROTECT MY SON. I am in danger and he needs help. He will never stop and if I get orders etc or report what he has done he will only come after me and I can’t protect my son against that. I need to get out of this house and please keep me updated on his case and please let me know when he is back in jail. I am starting an Application for housing transfer tomorrow, is there any chance you can send me a letter or something and housing and centrelink call you to confirm I need help. I don’t want to get orders as he will be back in jail soon. I have been threatened by him and his friends. I am contacting dvcs tomorrow for help. I have a lot of injuries and I’m scared and I am begging for you to let me know as soon as he is jail so I can relax. He is going to end up killing me if I am part of the witnesses and he will send someone to kill me and my son. He is going to kill me. I fought him for 3 hrs last night and I think he has psychosis or not okay in the head. He is going to run from you and won’t come easy. I can’t be involved in any of it anymore. I have never been more scared as what I was last night and I am in pain and been hit hard more than once and suffocated repeditly for 3 he’s and sliced with a razor across my face and I am scared Bridgette. Please find him and please keep us out of the courts he will kill us pls

18. Senior Constable O’Sullivan was on rostered days off at that time but still checked her work phone on the morning of 30 October 2021 and saw the email. She considered the email to be “quite distressing” and noted that it had been sent at about 2 o’clock in the morning. She was particularly concerned at the first sentence of the email. She requested that a welfare check be carried out on Ms Francis immediately.

19. In cross-examination, it was suggested to Senior Constable O’Sullivan that she could not be certain that it was Ms Francis who sent the email. She agreed, but said it was the email address that had been provided to her by Ms Francis and that she had had “continued liaison” with Ms Francis using that email address.

20. In re-examination, Senior Constable O’Sullivan was asked whether she had ever received an email from that address that she suspected was not from Ms Francis. She said: No, I hadn’t, and like I said, I’d received numerous emails from Nicole and numerous text messages. Nicole had a certain style of writing and the way she speaks to me and yes, just the way she types an email and a text message is – is very unique and that was the same th format in that email I received on the 30 as every other email and text message I’d received from her.

21. Counsel for Mr King objected on the basis that the evidence was “going towards expert opinion”. The magistrate said he did not think it was “there yet” and permitted the questioning to continue. Senior Constable O’Sullivan explained the level of contact she had had with Ms Francis (which was extensive) and then proceeded to describe her style of writing. She said Ms Francis’s messages were almost uniformly “not formatted” and that they were generally in one complete sentence with full stops but no spaces and all in “one block paragraph”.

22. That exchange concluded as follows: “Q: And was there anything about the email that has been tendered that gave you cause for concern that Ms Francis was not the author of that email? A: No, I believe Ms Francis wrote that message.”

23. That evidence is the subject of ground (e).

24. Constable Head and Constable Bishop were deployed to carry out the welfare check requested by Senior Constable O’Sullivan. They attended Ms Francis’s address at about 11:20 that morning. Constable Head observed injuries on Ms Francis which she described as follows: “I observed her to have some bruising to the left side of her face around the eye area and a red healing mark about an inch long under her left eye”. She described the bruising as being green, greenish purple and yellowish in colour. Constable Bishop described the injuries as follows: “Nicole had a bruised left eye and she had what appeared to be a healing scar or like a fresh cut under her eye, or freshly healing skin. I believe she had scratches as well on her hands, several scratches.” He estimated the length of the cut as being about 2 cm.

25. Both officers gave evidence that Ms Francis told them Wayde King was responsible for her injuries. However, Ms Francis was reluctant to speak to them and would not provide a statement. Constable Head said that Ms Francis had asked them to leave before anyone saw her talking to them. Constable Bishop said that Ms Francis had said gaol was bad for the appellant as “he just sits in there and does drugs and it fries his brain”. He said Ms Francis asked them not to have her name on any of the documentation in relation to the matter because she was scared of reprisals from the appellant. Constable Bishop agreed in cross examination that his notes said only “it will aggravate him” and did not record the word “reprisals”.

26. Constable Bishop went back to see Ms Francis again on 5 November 2021. He said she still refused to make a statement.

27. Constable Bishop also gave evidence of a discussion with Ms Francis about photographs of her injuries. He said that Ms Francis told him she had taken a photograph after the assault. She said it was on her phone and that she had sent it to the appellant. He said that she wouldn’t show him the photos at that time. However, he “subsequently” received three photographs from her. He said they were not accompanied by any explanation; Ms Francis just sent them through to Constable Bishop’s phone. The evidence was unclear as to whether the photographs were sent before or after his second visit, on 5 November 2021.

28. Those photographs became exhibits 3 and 4 in the proceedings before the magistrate. The first, marked photograph 001 (part of exhibit 3), is a screenshot of several photographs of Ms Francis. At the bottom of the image, it has three photographs above the date “Fri, Oct 8” (I note that 8 October was a Friday in 2021). Those photographs show Ms Francis with a fresh cut under her left eye and a significant amount of blood dripping down her cheek and onto her neck. Above those three photographs is a single photograph above the date “Sun, Oct 10”. That photograph depicts Ms Francis with the same cut. There is no longer any blood on her face. The diameter of the cut is slightly wider than in the photographs showing the cut while it was bleeding.

29. Photograph 003 (also part of exhibit 3) is a screenshot of a message to “Wayde”. It is undated. It includes a collection of photographs depicting the cut, including two of the photographs dated Friday 8 October from photograph 001, together with a further photograph which is undated but which shows a close-up of a raw, open cut and a small amount of blood on Ms Francis’s face.

30. Photograph 002 (exhibit 4) is a screenshot of metadata. It will be necessary to return to the significance of that photograph.

The complainant’s evidence

31. As already noted, Ms Francis was a reluctant witness and had to be brought to court on a warrant. She agreed that she had been assaulted in October 2021 “but not by Wayde”. She agreed that, as a result of the assault, she had a cut on her face. When asked what caused that cut, she said “I had something thrown at me”. Asked what was thrown at her, she said “I don’t know what it was. It was dark”. She said she could not remember taking any photographs of the cut on her face but agreed that the photographs in exhibit 3 were photographs of her. She said the assault lasted for “a second”. She said it occurred not far from her house but did not know exactly where because it was dark. She said she was outside at the time. All she could remember was that she was on a road. She said she could not remember sending an email to Senior Constable O’Sullivan.

32. The prosecution was granted leave under s 38 of the Evidence Act 2011 (ACT) to cross-examine Ms Francis as an unfavourable witness.

33. Under cross-examination, Ms Francis maintained that she had no recollection of the email. She said she was not scared of the appellant in October 2021. The evidence continued with the following exchange: Q: Why then did you tell police, “can you please take me and my son off this case? I don’t want to be added to his bail conditions or the paperwork. I’m in danger and terrified”? A: Because of people around him, not him. I asked police not to come to my door because I look like I’m snitching on him. I asked you all to leave me alone and keep me out of it and obviously you’ve done the exact opposite of that. I’m not scared of Wayde at all. Q: So you’re talking about other people. Is that right? A: I’m talking about retaliation for being a snitch and talking to police. I asked police to stop knocking on my door. Q: No, but you just said that you are scared of other people. Is that correct? A: Yes Q: Why then did you tell police, “he will never stop and if I get orders, et cetera, or report what he has done he will only come after me and I can’t protect my son against that”? A: It says “he”. It doesn’t say Wayde.

34. Two points can be made about that exchange. First, although the complainant denied any recollection of sending the email, she did not deny sending it and indeed engaged with its contents on the premise that she wrote it. Secondly, the last answer was plainly disingenuous. The only reasonable reading of the email is that “he” was a reference to the appellant. It was sent in response to the police officer’s email stating that “Wayde KING did not attend Court today as required”. No other person had been referred to up to the point of the email dealt with in the question. The complainant’s evidence at once supported the inference that she was the author of the email and demonstrated that she would go to any length not to implicate the appellant, even if that meant denying the obvious.

35. Ms Francis accepted that the email was sent from her email address and said that, as far as she was aware, she was the only person sending emails from that address. As already noted, it was sent at 2:07 am. It was not suggested that anyone apart from her infant son was living or staying at the premises at that time (apart from the appellant). Counsel for the appellant in his cross examination of Ms Francis secured an admission that “anybody could have accessed that computer” and that “anybody could have sent an email from that email address”. The cross-examiner then asked, “I just want to be very clear…Did you send that email?” To which Ms Francis responded, “I can’t remember, I wasn’t in a very good state of mind at the time”. It may be noted that the question breached the ninth of the ten commandments of cross-examination listed in the famous lecture by the late Irving Younger at UC Hastings College of the Law in the 1970s: avoid asking one question too many. The witness was offered the opportunity to deny sending the email. She did not deny sending it and instead gave an answer that tended to suggest she did.

36. In all the circumstances, the inference that it was Ms Francis who wrote and sent the email is overwhelming. The suggestion that an unknown person took over her computer or hacked her email account at 2 o’clock in the morning and composed an email that just happened to implicate the defendant, including accurate details of his existing circumstances (including his bail conditions) may be dismissed out of hand.

37. Ms Francis was cross-examined about the photographs received by Constable Bishop. She appeared to agree that photograph 003 was a screenshot of a conversation she had with the appellant on her mobile phone (“I guess so”). However, she maintained she did not remember anything from that night and did not remember sending the images to the appellant.

38. As already noted, one of the photographs received by Constable Bishop was an image of metadata. Constable Bishop noticed what he took to be an anomaly in the metadata, which was that it was dated “11/3/2021”. Counsel for the defendant sought to make a forensic point of that supposed anomaly on the assumption that the date was 11 March 2021, well before the assault was alleged to have occurred. The submissions in the appeal went so far as to suggest that Ms Francis had provided “false photographs” to police “purporting to depict the injuries caused by the appellant”. That was an extraordinary submission, suggesting, as it did, an attempt to pervert the course of justice. As noted by the prosecution in response, that very serious accusation was not put to Ms Francis. For that reason alone, the submission should not have been made.

39. Furthermore, the accusation of providing false photographs to police could not have been put to Ms Francis unless counsel had a proper basis for doing so. The supposed anomaly in the date in the metadata, which in any event could not be correlated with any particular photo, did not afford a proper basis for suggesting that a woman had presented false photos of herself with a nasty cut under the eye and blood pouring down her face.

40. The obvious explanation is that the date recorded is 3 November 2021. That alternative date format, which puts the month before the day, is well known and is a common issue in the assessment of documentary evidence. If the screen shot was taken on 3 November 2021 (between the dates of Constable Bishop’s two visits to the complainant), there is no anomaly; the taking of the screenshot fits perfectly logically within the chronology of the prosecution case. The metadata did not afford any basis to doubt what the complainant told police in the email and during their visit on 30 October 2021.

41. The following year, on 8 July 2022 (twelve days before the hearing in the Magistrates Court), the complainant sent a text message to Constable Bishop saying “Wayde didn’t assault me, please leave me alone!!!” Constable Bishop replied “Nicole, you are still required to attend court and provide what evidence you are willing to give. If you don’t, a first instance warrant may be issued for your arrest.”

42. The complainant replied “I already told you his ex Maddi Bates assaulted me, when I dropped him at his mates not Wayde. Don’t call me again, or come near me. I have told you repeatedly to leave me alone. I will just close the door. Your charging the wrong person. Do not come to my house!!! I will never speak to another police officer again and my son is terrified of police.”

43. The complainant agreed that she sent those two messages. However, she denied receiving the message from Constable Bishop, saying that at that point she had blocked him on her phone. She was unable to explain the obvious inference that her second message was responsive to his. She repeatedly denied that she was scared of the appellant or that he had assaulted her.

44. The cross examination by counsel for Mr King included the following exchange: Q: Is it the case that you do recall that another person, so not Mr King, committed the assault and that the reason you are not willing to name that person in court is that you are concerned about being labelled a dog or a snitch? A: My memory is not real good of anything. I don’t – that… Q: So your memory is not real good? A: Not with that event, no. Q: Are you refusing to say who did it because you are concerned that someone – another person, not Mr King, will have any reprisal or hurt you? A: Yes, I guess so. Q: Just to be clear, you are concerned that someone else is going to hurt you if you name that person as being the perpetrator of the assault? A: Yes. Q: And that person is not Wayde King? A: That’s correct.

45. To the extent that the complainant was there saying she was assaulted by someone other than the appellant (and even that was equivocal), it was hardly compelling. She was responding to leading questions put to her by counsel for the man she had previously said was responsible for her injuries in the presence of that man.

The appellant’s evidence

46. The appellant gave evidence before the magistrate. His evidence-in-chief amounted to a brief denial that he had assaulted Ms Francis or touched her in any violent way between the dates charged.

47. Under cross-examination, the appellant described his relationship with Ms Francis as “on and off”. He said at the time of the alleged assault they were “off” because he had been released from custody to “rehab” (other evidence established this was at Oolong House, a residential rehabilitation facility at Nowra). The appellant agreed he was discharged from that program but the evidence did not establish the date that happened. He said that, at the time of his arrest on 12 November 2021, he hadn’t seen Ms Francis since he came back from rehab. He qualified that by saying he had seen her once when he saw his son. He estimated that, prior to his arrest on 12 November 2021, he had been out of rehab for a couple of months or “about a month”.

48. The appellant denied ever discussing the present matter with Ms Francis. He said he noticed that she had a scar underneath her eye but said he thought nothing of it. In my assessment, that was a damning answer. Had he known nothing of the assault and seen the cut depicted in the photographs, even when it was healing as described by police, he would surely have been concerned and expressed that concern in his evidence.

49. The appellant gave evidence that, in October 2021, he was living with his parents in Michelago. The prosecutor asked, “and would you stay there every night?”, to which the appellant responded “yes”, “every night”. Until that point, the appellant had not put forward any evidence resembling alibi. Again, it may be noted that the question breached at least the fourth of the ten commandments listed by Irving Younger (never ask a question to which you don’t know the answer, unless the answer can’t hurt your case). The answer (apparently unexpected) prompted the prosecutor to seek an adjournment to allow police to make enquiries as to whether, contrary to the prosecution case, the appellant had slept every night in October 2021 at his parents’ place in Michelago.

The prosecution case in reply

50. When the hearing resumed, the prosecutor called evidence from an Access Canberra employee whose duties included dealing with complaints lodged via the organisation’s online web form. During the pandemic, that forum had been used to record COVID-19 related breaches. Through that witness, the prosecution tendered a report of a complaint evidently made by Ms Francis to the effect that the appellant had breached COVID restrictions by being at her house between 3 and 8 October 2021 when she and her son were in quarantine for “close contact” (presumably, contact with a person who had tested positive for COVID). The record of the complaint was admitted as exhibit 7 and is the subject of grounds of appeal (c) and (d), discussed below.

51. At the resumed hearing, the prosecution also called the appellant’s brother, mother and father in reply to the appellant’s evidence that he had stayed every night in October 2021 at Michelago. The brother did not live with the parents. He was evidently expected to give evidence that the appellant had only stayed at the house at Michelago for a few nights. However, he did not come up to proof. The prosecutor was granted leave to cross-examine him, but he did not recall making any such statement. Even if he had given that evidence, it is not clear how it would have assisted the prosecution, given that he was not living at that house. As submitted on behalf of the appellant, his evidence would have been inadmissible hearsay at best.

52. The appellant’s mother gave evidence that the appellant was staying with them in October 2021 and that she was his only means of transport as he did not hold a valid licence. However, she was, understandably, vague about the detail. She could not recall how long he was there, saying “I don’t know, I can’t really remember. That was ages ago”. The appellant’s father could not recall anyone else staying at their home in October 2021, even when prompted in cross-examination by counsel for the appellant. Finally, Constable Bishop was re-called to give evidence of the conversation with the brother in which the brother told him that the appellant had gone to stay at his parents’ place after he was let go from rehabilitation and that “it was only for a couple of days at the beginning of October that he was there”. However, having regard to the evidence of the brother that he did not live with the parents, no weight can be put on that evidence as it must have been second-hand hearsay. In the result, the evidence in reply was neutral as to whether the appellant stayed at Michelago every night in October 2021. It certainly did not support a finding that he did. Grounds of appeal

53. As already explained, it is logical to deal with the grounds of appeal in reverse order.

The opinions of Leading Senior Constable O’Sullivan

54. Ground (e) is “the learned magistrate erred in allowing into evidence the opinions of Senior Constable Bridget O’Sullivan”. The particulars of this ground are that “s 78 of the Evidence Act 2011 (ACT) had no application to the witness’s opinion that Nicole Louise Francis was the author of Exhibit 2”.

55. This complaint relates to the evidence of Leading Senior Constable O’Sullivan given in re-examination.

56. There was no dispute that the email was sent from Ms Francis’s email address. As already noted, she did not deny sending the email. She just said she did not remember sending it and that she “had a lot going on” at that time. She did not give evidence of any circumstances in which any other person might have sent the email from her email address at 2 o’clock in the morning. As noted by the prosecution in the appeal, s 161(1)(b) of the Evidence Act 2011 (ACT) created a presumption that the email was sent by her (“the person by or on whose behalf it appears from the document to have been sent or made”) unless evidence sufficient to raise doubt about the presumption was presented. No such evidence was presented.

57. The cross-examiner nonetheless raised an issue during the evidence of Senior Constable O’Sullivan as to whether it was Ms Francis who sent the email. It was put to Senior Constable O’Sullivan that she could not be certain it was the complainant who sent it. She acknowledged that she could not.

58. It was in that context that the prosecutor, in re-examination, asked questions directed to Senior Constable O’Sullivan’s familiarity with the appearance of communications from Ms Francis. As already noted, the magistrate dismissed an early objection to that evidence on the ground that it was opinion evidence.

59. Senior Constable O’Sullivan said she had been liaising with Ms Francis since mid- January 2021 (the email was dated 30 October 2021) and had received numerous emails and text messages from her. She said Ms Francis had a certain way of writing that was “very unique” and that the email marked exhibit 2 was “the same format”. She was asked about the “unique features of the formatting”. She said nearly all of Ms Francis’s messages were not formatted, they were one complete sentence, with full stops but no spaces and just “one block paragraph”.

60. The re-examination concluded: Q: And was there anything about the email P2 that has been tendered that gave you cause for concern that Ms Francis was not the author of the email? A: No, I believe Ms Francis wrote that message.

61. Counsel for Mr King was offered the opportunity to address the issue (“anything arising?”) but did not renew his objection at that point.

62. In the appeal, the prosecution submitted that it was only the last answer that gave an opinion. With one qualification, I agree. As submitted by the appellant, the evidence that the complainant’s writing style was “very unique” was an opinion. However, in my assessment, that brief comment was inconsequential in the context of the answer as a whole. On its own, it would certainly not provide the basis for an appeal.

63. Senior Constable O’Sullivan’s evidence proceeded to provide, based on what she had observed, the basis for putting the last question, whether she had any reason to think Ms Francis was not the author of the email. That topic had been opened by the cross-examination and was properly the subject of re-examination.

64. Strictly speaking, the officer’s evidence should have been confined to her observations, leaving it to the magistrate to determine what inference should be drawn as to authorship of the email. It does not follow that his Honour erred in admitting the last answer, since it was not objected to. However, the point having been raised in the appeal, the appropriate course is for me to disregard the evidence given in the answer that the complainant’s style was “very unique” and the answer, “I believe Ms Francis wrote that message”.

65. The evidence that the witness had no reason to doubt that the email was written by the complainant, being responsive to an issue raised in cross-examination, was otherwise admissible and may be relied upon for the purposes of the appeal.

Exhibit 7: the COVID complaint

66. Grounds (c) and (d) each concern exhibit 7 and may conveniently be dealt with together.

67. Exhibit 7 was a document the witness had extracted from Access Canberra’s complaint system. The complaint was lodged on 8 October 2021 and listed Ms Francis’s details as the contactable person. It included the following description of the complaint: Wayde King left Nowra Oolong Rehab Centre. He is there on bail and he got kicked out for drinking alcohol. He got a lift to ACT and has been residing at [a nominated residence] and rd entered my home on 3 October, even after telling him that [his son] and I were in quarantine for close contact and waiting for clearance. He stayed here until this morning 8 October at approximately 9am and went back to [the nominated residence]. He had no permission to enter the ACT or leave my home.

68. The complaint was admitted as a business record under s 69 of the Evidence Act 2011 (ACT). The appellant submits that section had no application because the complaint fell within the exception in s 69(3)(a) of the Act, having been prepared in contemplation of an Australian proceeding (being either breach of bail proceedings or prosecution for a contravention of s 120(4) of the Public Health Act 1997 (ACT)). Ground (c) is “the learned magistrate erred in admitting exhibit 7 into evidence”. Ground (d) is “the learned magistrate erred in not remedying a breach of the Browne v Dunn principle” as the contents of exhibit 7 were not put to the complainant and “no consequences flowed from that failure”.

69. Section 69 relevantly provides: Exception—business records (1) This section applies to a document that— (a) either— (i) is or forms part of a record belonging to or kept by an entity in the course of, or for the purposes of, a business; or (ii) at any time was or formed part of the record; and (b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business. (2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made— (a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or (b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact. (3) Subsection (2) does not apply if the representation— (a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or (b) was made in connection with an investigation relating or leading to a criminal proceeding.

70. It may be noted that s 69(2) creates an exception to the hearsay rule (“the hearsay rule does not apply…if”), while s 69(3) creates an exception to the exception (subsection (2) does not apply if”). It has been held that the onus of establishing any fact required to be established to bring a representation within s 69(3) is on the person opposing admissibility: Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2004] NSWSC 984 at [30] (McDougall J); followed in Hendricks v El Dik (No 2) [2015] ACTSC 351 at [17]-[20] (Mossop AsJ).

71. In Averkin v Insurance Australia Ltd [2016] NSWCA 122, Basten JA questioned the correctness of that approach. His Honour said at [8]: The standard approach is to say that the burden of proving an exception to a rule lies on the party relying on the exception. On one view, the exception to the hearsay rule was contained within subs 69(2) and (3), taken as defining the exception and its limits, and the burden was therefore on the insurer to prove that the documents were not merely within subs (2) but also were not excluded by subs (3). On another view, the general rule was relevantly identified as the business record exception contained in subs (2) (which the insurer could readily satisfy) and it was up to the appellant to demonstrate that the material was not admissible, because it fell within subs (3). The preferable construction should await another case.

72. However, it appears from the separate judgment of Leeming JA (with whom McColl JA agreed) in Averkin that the correctness of McDougall J’s approach had not been questioned by either party. Rather, the notion that s 69(3) is not an exception to the exception in s 69(2) but part of that exception, so that the two provisions together define “the exception and its limits”, appears to have been a thought that occurred to Basten JA at some point in his Honour’s consideration of the statute. Leeming JA declined to express a view one way or the other, as the issue had not been argued: at [117].

73. The appellant’s written submissions cited a decision of the Supreme Court of Western Australia, R v Catena [2012] WASC 144; 222 A Crim R 573 at [6], as authority for the proposition that “on issues of fact to be determined on the voir dire, the onus of proof lies on the prosecution and the standard of proof is ‘on the balance of probabilities’”. Resort to the common law is necessary in Western Australia because it is one of the jurisdictions that has not enacted the Uniform Evidence Law. In the Territory, the standard of proof for the admissibility of evidence is prescribed by s 142 of the Evidence Act 2011 (ACT). The decision in Catena does not stand for the other proposition for which it was cited by the appellant (that the onus of proof lies on the prosecution).

74. In submissions in reply, the appellant submitted that the decision of McDougall J in Rickard Constructions had “only been cited with approval once on this point”, in the decision of Mossop J in Hendricks. He submitted that “the weight of the authorities” makes clear that the onus was on the prosecution, since it sought to tender exhibit 7.

75. The submission misconceives the doctrine of precedent, which does not count weight in numbers of decisions. The appellant’s submission relied on the decision of the High Court in Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352, where the Court said at [17]: The onus of demonstrating the conditions of admissibility of evidence under the Act lies on the tendering party. In the present case the respondent had to demonstrate that the impugned representation fell within the exclusion created by s 78 from the inadmissibility generally applying to opinions by reason of s 76(1).

76. The same passage goes on to discuss, where a hearsay statement is contained in a business record, the importance of identifying the “asserted fact”. The exception to the hearsay rule was not established in that case because the neither the ambulance officers (the authors of the document) nor any bystander who might have provided information to them could reasonably be supposed to have personal knowledge of the asserted fact. The evidence was accordingly inadmissible because the party seeking to tender it could Not establish the factual precondition of s 69(2).

77. That is not the position here. The asserted fact is that the appellant was at the complainant’s house from 3 October 2021 until the morning of 8 October 2021. The maker of the statement (Ms Francis) could reasonably be supposed to have personal knowledge of that fact. The factual preconditions of admissibility under s 69(2) were met.

78. The question was whether s 69(2) was disapplied by s 69(3). Rickard Constructions is authority for the proposition that, where an issue arises as to the application of s 69(3), the onus of proof is on the party opposing admissibility. In Hendricks, after a careful consideration of that issue, Mossop J followed the decision in Rickard Constructions, which his Honour noted “was made on a relevantly identical provision”. It would be wrong for me not to follow the decision in Hendricks unless I thought that decision was wrong. I do not.

79. On that approach, the appellant bears the onus of proof in respect of the facts required to bring the representation within s 69(3). The standard of proof is the balance of probabilities: s 142(1) of the Evidence Act.

80. The magistrate concluded that the complaint did not fall within s 69(3)(b). There is no challenge to that conclusion. In submissions in reply, the appellant confirmed that he relies only on s 69(3)(a). Accordingly, the issue is whether his Honour should have found that the complaint was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding.

81. Proof of that issue “will at least ordinarily require an answer to the question why the representation was prepared or obtained”: Averkin at [112]. That is the issue on which the appellant bore the onus of proof. If the submission was to be made that the document was prepared in contemplation of or in connection with bail proceedings or proceedings for contravention of the Public Health Act, it was for the appellant (not the prosecution) to put that proposition to the complainant. At the hearing before the magistrate, in response to a submission by counsel for the appellant that the document should be excluded under s 137 on the basis that it was not clear who the author was, the prosecutor submitted, “the remedy for that concern is to call Ms Francis, and for the substance of this complaint to be put to her”. Counsel appearing for the appellant before the magistrate did not take up that suggestion.

82. The suggestion that someone other than Ms Francis made the complaint was entirely speculative. The overwhelming likelihood is that she was the author of the document. Without evidence from Ms Francis as to why she made the complaint, it is not obvious that it was made for the purpose of having the appellant prosecuted for contravention of the Public Health Act. She may simply have hoped that it would have the effect of keeping the appellant away from her but that, too, is speculative. The difficulty for the appellant is that this is an issue on which he bore the onus of proof. Absent proof by the appellant of the matters specified in s 69(3) of the Evidence Act, the representation that the appellant was at the complainant’s house between 3 and 8 October 2021 was an asserted fact in a business record and was admissible under s 69(2) of the Act.

83. For those reasons, grounds (c) and (d) must be rejected.

The Murray direction

84. Ground (b) is “the learned magistrate erred in applying the Murray direction”.

85. The magistrate gave his decision orally. The first two pages of the transcript of the decision consist of standard directions, one of which was the direction known as a Murray direction. The magistrate said: The Murray direction emanating from R v Murray [1987] 11 NSWLR 12. I must exercise caution where the prosecution seeks to have… (Inaudible)… the guilt of the defendant with a case largely, or exclusively based on the complainant’s version of events. If I convict the accused, I’m accepting the reliability of the evidence of the complainant. I need to be satisfied beyond a reasonable doubt that the evidence of the complainant is true and correct. And, if not satisfied, I must acquit.

86. The appellant’s written submissions also referred to the decision of the NSW Court of Criminal Appeal in Smale v R [2007] NSWCCA 328 at [71] where Howie J (with whom Mason P and James J agreed at [1] and [2]) noted that the absence of a Murray direction will not necessarily result in a miscarriage of justice: “The direction merely emphasises what should be clear from the application of the onus and standard of proof: if the Crown case relies upon a single witness then the jury must be satisfied that the witness is reliable beyond reasonable doubt”.

87. The appellant acknowledges that the magistrate correctly identified the case as one attracting the need for a Murray direction, being a case which was built on a single witness, Ms Francis. The appellant submitted that, in order for the magistrate to apply the Murray direction properly, his Honour was required to assess and explain how Ms Francis could be considered honest beyond reasonable doubt if she was capable of committing perjury and how she could be considered reliable beyond reasonable doubt when she admitted she had “a lot going on in her life” at the time she made her complaints to police.

88. The submission noted that the prosecution had not attempted to explore what was “going on” including whether, on 30 October 2021, Ms Francis “was affected by any intoxicating substances, mental health issues or feeling significant resentment towards the appellant at the time she was making the accusations”. That aspect of the submission (as to what the prosecution did or did not “explore”) is irrelevant to the application of the Murray direction and may be put to one side.

89. The submission continued “indeed, on one view, Exhibit 7 would suggest the complainant was upset on 8 October 2021 because she complained “he had no permission to enter the ACT or leave my home” (emphasis in original). The suggestion was that the complainant was upset because the appellant had left her home. That submission should not have been made. The complaint concerned compliance with COVID restrictions. It recorded the fact that the complainant and her son were “close contacts” during the relevant period. In those circumstances, the appellant should not have entered their home but having entered it, became a close contact himself and should not have left. The document did not afford a proper basis for speculation that a woman was upset because a man left her home.

90. It may be accepted that the magistrate’s formulaic recitation of the Murray direction at the outset of the judgment was inapt in the circumstances of the case. The prosecution case did not rest on the reliability of the evidence of Ms Francis given in court (which exculpated the appellant) but on the reliability of the email. I am nonetheless satisfied that the magistrate did approach the assessment of the whole of the evidence properly. His Honour explained why he did not accept the complainant’s evidence in court. He then explained why he accepted the email as evidence that it was the appellant who caused the cut to the complainant’s face. He noted a submission by the appellant that the prosecution case rested solely on the email and rejected that submission, pointing out that in fact Ms Francis had also told police the following morning that the appellant caused her injuries. His Honour nonetheless accepted that the email formed the primary basis for the charge. He considered and rejected the submissions as to its authenticity.

91. In my assessment, while it might have preferable for the magistrate to explain how the Murray direction applied to the case before him, he did in fact apply the substance of the requirement emphasised in that case.

92. For those reasons, I reject ground (b). Unreasonable verdict

93. It remains to consider ground (a), that the finding of guilt was unreasonable and cannot be supported by the evidence.

94. As noted in the appellant’s written submissions, two key directions applied in the magistrate’s assessment: the Liberato direction and the Murray direction.

95. In considering whether I think that, upon the whole of the evidence, it was open to magistrate to be satisfied beyond reasonable doubt that the appellant was guilty, I should give some deference to the advantage enjoyed by his Honour, who saw both key witnesses give evidence. Having heard the appellant’s evidence, his Honour rejected the appellant’s version and found that the alibi was a lie. His Honour’s assessment of that evidence included the identification of inconsistencies in the appellant’s account. In particular, he noted that the appellant first said that he was not aware of what he was doing or where he was staying after he left rehab; then that he was staying at Michelago the whole time and that he never left there other than to be driven by his mother to report in accordance with the conditions of his bail. Based on my reading of the evidence, I agree with that conclusion. Adherence to the approach required by Liberato does not require the Court to consider an accused person’s account in a vacuum. His initial evidence was a bare denial. In cross-examination, his evidence was inconsistent and implausible. The proposition that, having been discharged from the residential rehabilitation program, he stayed with his parents and never left except to report for bail (but failed to attend court) was not credible.

96. Of course, it does not follow from that conclusion alone that the appellant is guilty. The magistrate’s task was to determine whether the evidence relied upon by the prosecution proved the offence beyond reasonable doubt. In making that assessment, the magistrate correctly proceeded on the basis that there was no issue that the complainant had been cut under the eye. The only issue was whether it was the defendant who inflicted that injury. The evidence that supported that finding was the email and what Ms Francis said to Constable Bishop and Constable Head when they saw her in October and November 2021. It is accordingly necessary to scrutinise that evidence with some care.

97. The first issue was whether it was the complainant who wrote and sent the email. The magistrate concluded that it was. That conclusion was well open to his Honour and I agree with it. There was no evidence to indicate otherwise. The suggestion that someone else accessed Ms Francis’s email account and composed a false account was fanciful. There was no evidence from her of the kind of response one would expect if that had occurred: surprise, concern that someone had hacked her email account, speculation as to who might have done such a thing.

98. Furthermore, the language and content of the email was entirely consistent with Ms Francis’s having been assaulted by the appellant. It contained a raw expression of her fear of him and despair at the impossibility of stopping his violence. The statements that she had been “hit hard more than once” and “sliced with a razor across my face” were corroborated by the injuries observed by police. The appellant’s lack of surprise at those injuries tended to implicate him.

99. Once it was accepted that the email was authentic, it clearly provided a basis for the magistrate to be satisfied beyond reasonable doubt that Ms Francis’s injuries, particularly the cut under the eye, were caused by the appellant.

100. Ms Francis’s evidence in court, in which she denied that it was the appellant who assaulted her, did not cause the magistrate to doubt the truth of what she had said in the email. His Honour analysed her evidence in detail, concluding: “in listening to those responses and observing her in the giving of evidence, I was satisfied she was not being forthright. In fact, I suspect scared and consequently sought to avoid naming the defendant as being responsible and he observing her doing or saying so during the giving of her evidence.”

101. Based on my reading of the evidence, I agree with that conclusion. The email conveys a plausible account of the terror Ms Francis would have been experiencing in October 2021 after being visited by the appellant when he had been discharged from rehab and assaulted by him over a period of time, including being “sliced with a razor” across her face. The photographs of Ms Francis dated 8 and 10 October 2021 depict an open wound consistent with that description. Her account in evidence that something got thrown at her by an unknown person in the street one night was implausible.

102. The appellant’s central argument in support of this ground was that Ms Francis’s version in the email could not be accepted as honest and accurate if her evidence in court was found to be unreliable. The appellant noted that the prosecution case was that the complainant was lying in court when she said it was not the appellant who assaulted her but that she was telling the truth in the email when she said it was. He submitted “it would not have been possible to find the complainant to be unreliable whilst finding the offences proved”.

103. The submission assumes a homogeneity in a witness’s credibility that does not reflect life experience or the law. It is simply not correct that a witness who lies about one issue cannot be accepted as honest and reliable in relation to another. It is not what juries are told and it does not reflect human experience. Most importantly, it does not take account of how people might respond to trauma.

104. The phenomenon in the criminal justice system of a victim of domestic violence reporting the violence truthfully in its immediate aftermath and then recanting from that account is sadly familiar. It is appropriate to record, in that context, that the police officers involved in the present case acted responsibly and appropriately in persisting to seek to protect the complainant, including persisting in the prosecution of the charge, even while she was abusing them and threatening to sue them.

105. Based on my review of the whole of the evidence, I am satisfied that it was well open to the magistrate to be satisfied beyond reasonable doubt that the appellant was guilty. The evidence has not caused me to experience a doubt that the complainant was telling the truth in her email sent to police in the early hours of 30 October 2021 where she identified the appellant as the person who had sliced her face with a razor blade.

106. In case of error in my treatment of the grounds concerning exhibit 7, I have reached that conclusion without regard to the contents of that exhibit 7. However, that report plainly supports the conclusion of guilt.

Orders

107. For those reasons, the order I make is that the appeal is dismissed.

I certify that the preceding one hundred and seven [107] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 3 May 2024