NS v Dunne [2021] NTSC 77

Lynch v The Queen [2020] NTCCA 6; Morluk v Firth [2017] NTSC 9;

Warford v Firth [2017] NTSC 75, applied.

Bartusevics v Fisher (1973) 8 SASR 601; BCM v The Queen (2013) 88

ALJR 101; Bird v Peach [2006] NTCA 7; (2006) 17 NTLR 230; Carruthers v Griffis (2000)

[2000] NTSC 11; 111 A Crim R 477; Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517; Gibson v

Firth & Harland [2019] NTSC 26; Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559;

M v The Queen [1994] HCA 63; (1994) 181 CLR 487; Papakosmas v The Queen (1999) 196

CLR 297; Pell v The Queen (2020) 94 ALJR 394; Politis v Federal

Commissioner of Taxation [1988] FCA 446; PW v The Queen [2020]

NTCCA 1; R v Tait & Anor [1979] FCA 32; (1979) 46 FLR 386; Salmon v Chute (1994) 94

NTR 1; SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400; The Queen v Dookheea

[2017] HCA 36; (2017) 347 ALR 529; The Queen v WJM [2004] SASC 345; Thyer v

Evidence (National Uniform Legislation) Act 2011 (NT) ss 38, 66.

Appellant: North Australian Aboriginal Justice Agency

Respondent: Office of the Director of Public Prosecutions

NS v Dunne [2021] NTSC 77

• [1] The issue in this appeal is whether the Local Court should have held a reasonable doubt that the appellant, who was the complainant's domestic partner, assaulted the complainant in circumstances where the complainant's clear in court evidence was that he did not assault her, there was no contemporaneous medical evidence confirming the alleged assault, records of the complainant's initial complaint to Hospital staff did not include the alleged assault, the complainant's initial complaint to Police was made when she was intoxicated and her statement to Police made the following day was sought to be retracted by the complainant before the hearing.
• [2] On 10 March 2021, in the Local Court, the appellant pleaded not guilty to a charge that, on 19 December 2020, he unlawfully assaulted RM with the circumstances of aggravation that he was a male and she was a female, and that she suffered harm. The particulars of the assault were that, after RM had jumped from a moving car being driven by the appellant, he got out of the car, approached her and punched her to the mouth causing pain and a cut to the lip.
• [3] The hearing Judge found the charge proved. Pursuant to s 163 of the Local Court (Criminal Procedure) Act (NT), the appellant has appealed against the conviction on the ground that the conviction is unreasonable and not supported having regard to the evidence.
• [4] It was common ground that the appellant and RM were in a domestic relationship at the time of the alleged offending and at the time of the Local Court hearing.
• [5] At the hearing, the Crown called evidence which, for present purposes, may be summarised as follows:

(a) Senior Constable Christopher Carter ('Carter') - he spoke with RM on 19 December 2020 while she was at the Hospital (which was recorded on body worn footage), observed that she appeared heavily intoxicated and in pain, had a swollen lip, and was told by her that she had been punched to the lips[1] by the appellant;

(b) Senior Constable First Class Chris Humphries ('Humphries') - he took a statement from RM on 20 December 2020 while she was at the Hospital, in which he recorded that she had been punched to the lips by the appellant, and he took a photograph of RM's face in which she pointed to her swollen lip (both the statement and the photograph were received);

(c) Kate Uillsone - a bystander who assisted RM immediately after the alleged assault and who gave evidence that, when she saw the appellant and RM running across the road, they appeared to have had a fight, and RM appeared distressed, was asking for help and saying she was scared and hurt;

(d) medical records of RM's attendance at the Alice Springs Hospital - in which a Registrar recorded that there had been a verbal argument with RM's partner while he was driving at high speed, that she leapt from the moving car and that he approached her, dragged her along the ground by her hair and punched her in the stomach several times. Another Registrar recorded a history of 'head strike, no LOC...partner punched in stomach';

(i) arrested the appellant on 23 December 2020 (which was recorded on body worn footage, parts of which were received), who denied any wrongdoing; and

(ii) spoke with RM again on 17 February 2021, when she said she had been mistaken or had lied in her statement of 20 December 2020 and the appellant had told her that he had not punched her and that she had hurt herself by hitting her head on the glove box of the car; and

(f) RM - whose oral evidence by in chief and in cross-examination was to the effect that she was not assaulted by the appellant after she jumped out of the car, that she had been drunk when she jumped out of the car, that she had had to ask the appellant whether he had assaulted her because she could not remember, and that he had told her he had not assaulted her.

• [6] No evidence was called in the defence case.

Appeal ground: Conviction was 'unsafe and unsatisfactory'

• [7] The appellant's appeal was founded on the following matters which were said to demonstrate that, on the totality of the evidence, it was not open to find beyond reasonable doubt that the appellant assaulted RM:

(a) RM was very intoxicated at the time, such that she could not remember whether the appellant punched her or not. The hearing Judge failed to give sufficient regard to how that intoxication bore on the veracity and reliability of RM's statements to Police and Hospital staff.

(b) There was significant inconsistency between RM's statements to Hospital staff (that she was dragged by the hair and punched in the stomach) and her statements to Police (that she was punched to the lips).

(c) The evidence about the injury to RM's lips (the photograph and the observations of Humphries and Carter) was insufficient to establish that harm was caused.

(d) RM did not tell Ms Uillsone that the appellant had assaulted her and Ms Uillsone (who is a trained midwife) did not give evidence of any injuries to RM.

(e) RM's statement to Carter recorded on body worn footage that the appellant had punched her to the lips came in response, not to open questions and in her narrative of what occurred, but in response to the question 'any violence?', which was not particularised so as to coincide with the particulars of the alleged offending.

(f) RM's evidence in court was consistently that she was not assaulted by the appellant, the inconsistencies between that evidence and her statements to Police and Hospital staff impugn her credibility in circumstances where there is a credible explanation for why she told Police that she was assaulted (namely she was so intoxicated she could not remember whether the appellant assaulted her and she felt pressured by Police to allege assault), and there is no corroborative medical or other evidence of an assault having occurred.

• [8] The test for an unsafe or unsatisfactory verdict is whether the court thinks that, upon the whole of the evidence, it was open to the jury (or, here, the hearing Judge) to be satisfied beyond reasonable doubt that the accused was guilty.[2]
• [9] In most cases, a doubt experienced by an appellate court will be a doubt which a jury (or hearing Judge) ought also to have experienced and it is only where a jury's (or hearing Judge's) advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by an appeal court that the court may conclude that no miscarriage of justice occurred.[3] So, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury (or hearing Judge) ought to have experienced.[4] If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appeal court to conclude that, even making full allowance for the advantages enjoyed by the jury (or the hearing Judge), there is a significant possibility that an innocent person has been convicted, then the court is bound to act and set aside a verdict based upon that evidence.[5]
• [10] The appeal court must make its own independent assessment of the evidence and determine whether it would be dangerous in all the circumstances to allow the verdict to stand,[6] paying full regard to the consideration that the jury (or hearing Judge) is the body entrusted with the primary responsibility of determining guilt or innocence, and consideration of the fact that the jury (or hearing Judge) has had the benefit of having seen and heard the witnesses.[7] The appeal court must weigh the whole of the evidence, in particular, the competing evidence.[8] However, the performance by an appeal court of its functions does not involve the substitution of trial by an appeal court for trial by jury (or hearing Judge) so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness box.[9] Further, the assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury (or the hearing Judge).[10]
• [11] The test as to whether it was open to the jury (or the hearing Judge) to be satisfied of guilt beyond a reasonable doubt has been re-expressed as 'whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt'.[11] The High Court has recently accepted that this re-expression is consistent with the expression of the test set out in paragraph [8][12] above.12
• [12] Unless there is demonstrable error, the presumption is that there is no error.[13] Further, an appeal court should approach the task of reading reasons at first instance 'sensibly and in a balanced way, not reading passages from the reasons for decision in isolation from others to which they may be related or taking particular passages out of context of the reasons as a whole'.[14]
• [13] Of ex tempore reasons, it has been held that such reasons delivered in the course of a busy listing schedule cannot be assessed in accordance with the counsel of perfection, and it is inappropriate to attempt to dismember them and subject them to a vigorous analysis.[15] While the reasons given in this matter were not ex tempore, they were delivered some nine days after the hearing of the evidence and oral submissions and delivered orally in the course of a busy listing schedule. The observations about ex tempore reasons remain applicable in these circumstances, albeit to a lesser degree.
• [14] It has long been held that courts such as the Local Court are very busy courts, allowances have to be made when considering, on appeal, everything that has fallen from the hearing Judge when delivering reasons and, just because some matters that ought to have been considered were not mentioned, that does not necessarily mean that it would be proper to infer that they were not considered.[16] The principle is that an appellate court will usually assume that the hearing Judge has considered all matters which are necessarily implicit in any conclusions which she or he had reached, which principle is not confined to sentencing matters.[17]

• [15] The appellant relied on RM's undisputed evidence in chief that, during the afternoon of 19 December 2020, she had been drinking with her family,[18] and that she was still feeling drunk when she spoke to Carter at the Hospital on 19 December 2020,[19] and her undisputed evidence in cross-examination that she was drunk at the time of the incident,[20] she had been drinking from 1pm on the day before the incident, had drunk a lot that day, started drinking when she woke up on the day of the incident at about 1pm, drank 'maybe seven' Jim Beam stubbies and a schooner or five schooners of beer, until it went dark at which time she was 'really drunk', agreed that when the appellant came to pick her up she was 'extremely drunk',[21] agreed that she jumped out of the moving car because she was upset about the appellant getting jealous of her talking to the attendant at the service station, upset about an argument with her family, and 'really drunk',[22] agreed that she remembered only 'some bits' of what happened that night because she was very drunk,[23] and agreed that she had asked the appellant whether he had punched her because she did not know the answer as she was 'too drunk'.[24] The appellant also relied on Carter's observations of RM at the Hospital on the evening of 19 December 2020 that she 'appeared quite heavily intoxicated' and 'was having difficulty speaking'.[25] The appellant also relied on Carter's decision not to take a statement from RM until the next day due to her intoxication and her being in pain.
• [16] The appellant argued that the hearing Judge failed to have sufficient regard to the effect RM's intoxication may have had on the veracity and reliability of her initial complaints to Hospital staff and Police.
• [17] The hearing Judge's findings, founded on the body worn footage of Carter of his conversation with RM on 19 December 2020, were that RM was not in any sense incoherent, was able to accurately answer open questions that Carter put to her, and to give coherent answers to questions about her, her partner and what happened, and was engaged and responsive with her answers that were appropriate.[26] Her Honour also found that RM was affected by alcohol but clearly coherent and answered Carter's questions honestly.[27] As to the time when Humphries took RM's statement on 20 December 2020, the hearing Judge found it reasonable to infer that, at that point (which was some 12 hours later), RM was sober.[28]
• [18] Given these findings, the submission that the hearing Judge failed to give adequate weight to RM's intoxication as an explanation for her initial statements to Police is unsustainable and must be rejected. As to the submission that the hearing Judge failed to give adequate weight to RM's intoxication as an explanation for her initial statements to Hospital staff, the point of that submission is that those statements were unreliable. It is difficult to see how that would assist the appellant when the appellant relies on inconsistency between those statements and RM's initial statements to Police. In any event, consistently with the principle referred to in paragraph [14] above, it is implicit in the hearing Judge's finding that RM was not so intoxicated that her statements to Police were unreliable, that she was not so intoxicated that her complaints to Hospital staff were unreliable.
• [19] The respondent argued that the contention that RM was so intoxicated as to be unable to remember the events is inconsistent with the contemporaneous evidence from independent sources. I accept that submission by reference to the following evidence:

(a) Ms Uillsone's evidence did not contain any reference to RM's intoxication, notwithstanding that she was asked to describe RM's actions, behaviour and demeanour during their engagement. Further, Ms Uillsone did not mention intoxication when she described RM's physical condition to the 000 dispatcher, including giving an affirmative answer to the question 'is she completely alert?'[29].

(b) The medical records did not contain any reference to RM being intoxicated, and recorded that, whilst she appeared overwhelmed and anxious during a discussion about the risks of having a CT scan whilst pregnant, she was 'lucid, oriented as to person, place and time and able to retain the idea of radiation and to understand the balance of risks between herself and the baby and that ultimately her health supports the child'.

(c) The observations of Humphries on 20 December 2020 were that RM was coherent and volunteered her account of what happened before he had started taking the statement. Further, what is recorded in that statement is consistent with RM's conversation with Carter the night before (as shown on the body worn footage).

• [20] I note also that Carter's evidence in chief (as set out in paragraph [15] above) was qualified by evidence he gave in cross-examination after watching the body worn footage of his discussion with RM on 19 December 2020, where he agreed that RM was giving responsive answers to questions and was able to give some responses to questions such as 'what happened?'.
• [21] The hearing Judge found that, whilst giving evidence in court, RM was doing her best to put the appellant 'in a good light' and was at pains to avoid anything which put the appellant 'in a bad light', including minimising what occurred at the service station and in the car before she jumped out.[30] In a similar way, RM's evidence about her level of intoxication can be explained on the basis that she was seeking to maximise that level in order to support her evidence in court that her earlier statements about being punched by the appellant to the lips were inaccurate.
• [22] For the reasons set out above, I reject the submission that the hearing Judge failed to give sufficient regard to RM's level of intoxication at the time of the incident and when she spoke to Hospital staff and Police on 19 and 20 December 2020.

• [23] The appellant argued that the inconsistency between the 'first complaint evidence' given by RM to Hospital staff and her subsequent statements to Carter and Humphries should have led the hearing Judge to hold a reasonable doubt about the allegation that the appellant punched RM to the lips after she jumped out of the car.
• [24] The medical records include the notes made by an Emergency Department Registrar upon seeing RM at the Hospital. In those notes, a history is recorded of a verbal argument with RM's partner while he was driving at high speed (100-120km per hour), she leapt from the moving car, she landed on her right side on her shoulder to hip, with a head strike but no loss of consciousness, she rolled several times and then tried to get up, he came after her 'dragging her along the ground by her hair' and 'then punched her in the stomach several times', and several bystanders intervened and got her away from him and then brought her in a private car to the Hospital.
• [25] The medical records also include a history taken by a Surgical Registrar upon seeing RM at 6.20am on 20 December 2020. In those notes, a history is recorded that RM jumped from a vehicle at 100km per hour, landed on her right side on her shoulder to hip and there was a head strike but no loss of consciousness, her partner punched her in the stomach, and she was able to ambulate immediately.
• [26] There is no indication in the medical records that RM told Hospital staff she had been punched to the mouth or the lips by the appellant.
• [27] The appellant argued that the version of events in which RM was dragged along the road by her hair and punched several times in the stomach was an entirely different manner of assault from being punched once to the lips. This was said to bear on the veracity of RM's statements to Police, and to render them unreliable.
• [28] The respondent argued that: (a) an absence of reference in the medical notes to an injury to the lips or a complaint of a punch to the lips was explicable on the basis of RM presenting with more serious injuries and pregnancy after having leapt from a moving car, and did not require an inference that there was no such injury and no such complaint; and (b) a minimisation in her initial complaints to Police of the manner of assault from dragging by the hair, punches to the stomach and a punch to the mouth to simply a punch to the mouth was explicable on the basis of her desire for an ongoing relationship with the appellant (as to which see further below). Consequently, the respondent argued that any apparent inconsistency is explicable in a way that does not impugn the reliability of RM's initial complaints to Police.
• [29] The hearing Judge noted that the injury to the lip was not mentioned in the medical records but, as the respondent argued (see paragraph [28] above), refused to infer that there was no s[31]h injury.31 There was no express finding about an inference that there was no such complaint. The hearing Judge also noted that an assault was documented in the medical records, although it was recorded as dragging by the hair and a punch to the stomach, which her Honour noted were not alleged in the [32]oceeding.32 There was no express finding that RM minimised her description of the assault in her initial complaints to Police. In accordance with the principles set out in paragraph [14] above, I conclude that these findings were made by her Honour because they are necessarily implicit in her conclusion that RM was telling the truth in her original account to Police about [33]e injury to the lip.33 In my view, the apparent inconsistency between the versions of the assault appearing in the medical records and RM's initial complaints to Police is explicable in a way that does not impugn the reliability of the latter and so, does not raise a reasonable doubt about the guilt of the appellant.

• [30] The appellant argued that the totality of the evidence about an injury to RM's lip(s) was insufficient to establish that harm was suffered by RM or that she suffered an assault. Again, the appellant pointed to the absence of any reference to an injury to the lips in the medical records. The appellant also pointed to the failure of Ms Uillsone to mention, at any time, any injury to RM's lip(s).
• [31] The medical records catalogue various injuries or lack thereof to RM. As regards RM's head, the Emergency Registrar noted haematoma and tenderness to the left parietal skull, but no signs of injury to the base of the skull, no facial tenderness, no [indecipherable] tenderness and no intraoral injury.[34] It is unknown what the note recording no facial tenderness was intended to indicate, or whether the term 'facial' was intended to include the patient's lips, particularly given the separate reference to 'intraoral injury'. As concluded above, the absence of reference to a cut lip(s) or swollen lip(s) is explicable and this record of injuries does not give rise to a reasonable doubt that harm was suffered or an assault occurred.
• [32] Ms Uillsone was not asked specifically to give evidence about what injuries she observed to RM at the time. In examination in chief, Ms Uillsone said RM told her she had a sore shoulder and that she was hurt, and Ms Uillsone could see that she was hurt, but not in need of an ambulance immediately.[35] Ms Uillsone did not mention any injury to the lips in the 000 call, but that is explicable for the same reason that such injury may be absent from the medical records. Again, Ms Uillsone's evidence does not give rise to a reasonable doubt that harm was suffered or an assault occurred.
• [33] That is particularly so where both Carter and Humphries gave evidence that they observed that RM had a swollen lip,[36] and on 20 December 2019, RM permitted a photograph to be taken of her face in which she pointed to the left side of her top lip. The hearing Judge found that this photograph shows a swollen lip,[37] and that accords with my observation of the photograph.

• [34] The hearing Judge found that the version of events given initially by RM to Police was corroborated to some extent by Ms Uillsone's evidence.[38] The appellant argued that, despite sitting with her for over 20 minutes, RM did not tell Ms Uillsone that she had been assaulted by the appellant. I note that Ms Uillsone was not specifically asked whether RM told her she had been assaulted. I also note that, in her 000 call, Ms Uillsone told the operator that she had come across a lady 'that's been abused by her husband'. Ms Uillsone's evidence in chief[39] was to the effect that she was driving her car, noticed a car with its headlights on and windows down with the engine still running parked on the right side of the road, saw a man and a woman running across the road, realised it was 'an argument dispute' happening, the woman was yelling for help and their body language made it evident 'there was a fight happening', they were yelling and the man was swearing at the woman, she was running a few steps ahead of him, Ms Uillsone told the woman from her car that she would help, the man ran off and the woman sat down on the median strip, the woman's t-shirt was raised, exposing her breasts, but she was so distressed and 'scared for her life' that she didn't notice for quite some time, the woman's eyes were 'really wide', she told Ms Uillsone she was pregnant, scared and hurt, her shoulder was very sore and she wanted to go to the Hospital, and continually asked 'please help me'. Ms Uillsone said that the man's very tense body language, the volume of the man's voice, that the man seemed to be trying to overpower the woman and the use of threatening tones by the man indicated to her that there was a fight happening. Ms Uillsone was not cross-examined. In light of her evidence as a whole, the absence of evidence from Ms Uillsone to the effect that RM told her she had been assaulted by the appellant does not compel the inference that RM did not make such a complaint. That there had been an assault was, at least, inferred by Ms Uillsone from her observations of events given her statements in the 000 call. No reasonable doubt is raised here and the hearing Judge was not in error to find that Ms Uillsone's evidence was corroborative of RM's initial statements to Police.

• [35] The appellant argued that the hearing Judge mischaracterised the evidence in finding that RM told Carter that 'she jumped out of the car because of arguing with the defendant and that the defendant had punched her to the lips'.[40] This was said to be a mischaracterisation because RM gave a narrative of jumping out of the car in response to open questions such as 'what happened?' and only mentioned being punched to the lips when asked the question 'has there been any violence?', which was not particularised so as to coincide with the particulars of the alleged offending.
• [36] In response to a similar argument, the hearing Judge held that the only reasonable interpretation of the answer was that RM was referring to the incident of that night.[41] This interpretation of the answer has not been shown to be erroneous. The question and answer came early in the conversation about what had happened to RM that evening. Given her injuries, her pain and her intoxication, the fact that her focus was on having jumped out of a moving car to avoid an argument with the appellant is understandable.
• [37] More importantly, the statement given to Humphries the following day is consistent with the interpretation of RM's answer to the question as referable to the night in question. It records that, after RM jumped out of the car and sat up on the road, the appellant stopped the car, came over to her, punched her in the mouth with his right fist, hitting her mouth hard and causing a swollen lip, which she allowed to be photographed and the photograph attached to the statement. In the statement, she said the punch hurt, the appellant started saying sorry and told her to get back in the car. She said after Ms Uillsone pulled over, the appellant drove away because he did not want to get into trouble. She also said she wanted the appellant to get into trouble for punching her, which is wrong and that she wanted a DVO so he can't punch her again but she can still see him.
• [38] RM's answer to the question, as construed by the hearing Judge, was properly given weight in assessing the reliability of the statement given to Humphries the following day.

Inconsistency between in court evidence and statements to Police

• [39] In addition to the evidence regarding her intoxication referred to above, RM's in court evidence was to the following effect.[42] In evidence in chief, she said that, after the appellant picked her up in the car, they went to the service station for fuel, where the appellant told RM she was taking too long paying for the fuel and asked her what was going on between her and the service station attendant, which she referred to as 'jealousing'. After they left, she got a call from her family who were swearing at her and making her angry. She banged her head on the glove box and jumped out of the car because she was angry. She said after she jumped out, she was sitting on the road, the appellant came and tried to get her to go in the car, she was still angry and he drove off because he was scared that she jumped out of the car. She denied that the appellant touched her at all when he came up to her, except pulling her shirt to go back in the car. She said then a white lady came and took her to the Hospital. When showed the body worn footage of her conversation with Carter at the Hospital, RM said 'I really didn't say that to police'. Asked about her statement to Humphries the following day, she said she did not want to give a statement and was forced to do so by Humphries. She said 'It's my life and I don't want to do any statement. He never done anything wrong to me.' When the statement was read to her, she admitted that she said those things to Police, and allowed her photograph to be taken, but said that the appellant did not punch her. She denied her statement was a true statement when she made it. She said that, when she got out of Hospital, she went to the appellant's mother's house and the appellant was sitting out front. She said the appellant told her to go away because she had gotten him in trouble. She said she asked him if he punched her on the mouth that night and he said he did not. He told her she banged her head on the glove box and he got scared and worried about her when she jumped from the car.
• [40] Thereafter, the Crown was given leave to cross-examine RM pursuant to s 38 of the Evidence (National Uniform Legislation) Act 2011 (NT) ('ENULA'). In cross-examination, RM said that what she told Carter about being punched in the lips was not true. Asked if she had changed her story because she did not want the appellant to get into trouble, she said 'Yeah, I don't want him to get into trouble.' She agreed that she still loved the appellant a lot and still wanted a relationship with him. She denied that she had made up a new story and said 'he never done anything to me'. In cross-examination by defence, RM said the appellant did not punch her to the face and denied that she told Hospital staff that he had punched her to the face or the stomach or dragged her by the hair. RM said she told Police that the appellant had punched her in the mouth because she thought that is what they wanted to hear. She reiterated that the appellant never punched her in the face. She also said she did not want a DVO against the appellant.
• [41] Thus, RM's evidence in court was consistently that she had not been assaulted by the appellant. Her position was that she could not remember what had happened because she was intoxicated and she accepted what the appellant told her when she asked him, namely that he had not punched her. Her explanation for the initial statements to Police was that she had been overborne by Carter and Humphries and 'forced' to say that the accused had assaulted her.
• [42] The appellant argued that, in the absence of 'credible independent evidence' one way or the other, the two competing versions of events from RM must give rise to a reasonable doubt about her credibility and an inability to determine, beyond reasonable doubt, which version of events is true.
• [43] In Morluk v Firth,[43] Grant CJ dealt with an appeal from conviction for domestic violence offending where (at [36]) his Honour held there were not inconsistencies between the complainant's evidence and some contemporaneous and objective documentary evidence, or between the complainant's evidence and some plausible evidence given by an independent third party, but there were direct inconsistencies between the various accounts given by the complainant during the course of the trial and she was significantly intoxicated at the time of the alleged offending having taken place. In those circumstances, his Honour described (at [37]) the central questions as being whether the inconsistencies went to the essential features of the complainant's account of the offences,[44] and whether those inconsistencies were explicable in a manner that did not provide a basis for them to reflect on the complainant's credit.[45]
• [44] In Morluk v Firth (at [38]), Grant CJ observed as follows:

It is a not uncommon occurrence for a victim in proceedings, particularly those involving an alleged assault in the domestic violence context, to recant her or his complaint to police or evidence given in court which would inculpate the alleged offender. It does not follow in such circumstances that a reasonable doubt will necessarily arise, although that may be the finding. The determination of whether a reasonable doubt arises in cases such as this is not to be resolved by conducting a mechanical comparison of the two accounts given by the victim, identifying inconsistency between those accounts, and concluding that reasonable doubt must arise by reason of the inconsistency. Inconsistency of that type will not necessarily yield reasonable doubt even where, as in the present case, the accounts are diametrically opposed.

• [45] His Honour also observed (at [42]) that there was a clear basis arising from the victim's evidence and surrounding circumstances on which to explain the internal inconsistencies in her evidence in a manner which did not reflect adversely on her reliability concerning the essential elements of the offending, namely that she was in a spousal relationship with the appellant and once she had been removed from immediate danger, had received medical treatment and resumed her relationship with the appellant, the assault was a matter that she considered should be dealt with in the context of that relationship, rather than by the criminal justice system.
• [46] His Honour set out (at [43]) a passage from the decision of Southwood J in Warford v Firth,[46] in which his Honour noted that the complainant was an honest witness who gave truthful evidence and the inconsistencies in her evidence and the number of statements she made was perfectly consistent with the conflicting emotions a person who is subject to domestic violence experiences, including persisting attachment to the domestic partner, the desire not to harm them, fear of them and a feeling of blame or fault for what occurred. Southwood J held (at [61]) that the complainant 'never recanted in any way in relation to the assault that occurred' on the morning in question.
• [47] Grant CJ held (at [44]) that those influences were at work in the case before him, providing a logical reason for the acceptance of that part of the victim's evidence where she clearly recalled her partner hitting her with a stick and punching her in the face, and the rejection of those parts of her evidence where she sought to retract that evidence or to give an apparently contradictory account.
• [48] Those same central questions identified by Grant CJ in Morluk v Firth were applied by the Court of Criminal Appeal in Lynch v The Queen.[47] It was an appeal against convictions for sexual assault without consent. The complainant was a sex worker whose usual practice was not to engage in sexual intercourse with a client unless they wore a condom. Her evidence was that the accused refused to do so and had sexual intercourse with her without wearing a condom. The appellant's case was founded (at [22]) on inconsistencies between the complainant's Police interview and her evidence in court and inconsistencies between her evidence at trial and the evidence of other witnesses. As regards the first basis, after identifying those central questions, the Court summed up its assessment of the case before it by holding (at [38]) that 'the potential inconsistencies identified [by the appellant] did not necessarily cause doubt on the truthfulness and accuracy of the complainant's evidence on the essential elements of the charges'.
• [49] The appellant was content to apply the central questions in the present case, notwithstanding his arguments that there were inconsistencies between RM's evidence and contemporaneous and objective documentary evidence (the medical records) and between RM's evidence and plausible evidence given by an independent third party (Ms Uillsone), and notwithstanding that the relevant inconsistencies in RM's evidence were not due to differing versions of events given during the course of the trial, but a difference between the initial complaints to Police and her consistent evidence given during the course of the trial.
• [50] Given my conclusions above regarding the asserted inconsistencies between RM's initial complaints to Police and the medical records and Ms Uillsone's evidence, like the situation in Morluk v Firth, there were no significant inconsistencies between RM's evidence and contemporaneous and objective documentary evidence or plausible evidence given by an independent third party.
• [51] As the appellant argued, there is a significant difference between the present case and the cases of Morluk v Firth, Warford v Firth and Lynch. The difference is that in those cases the complainant's in court evidence was not inconsistent as to the essential elements of the charged conduct. In each of those cases, the complainant had given evidence in court which asserted the commission of the essential elements of the charged conduct. In the present case, the complainant's in court evidence consistently denied the commission of the essential elements of the charged conduct.
• [52] In the present case, the first central question referred to above must be answered by saying that the inconsistencies between the complainant's evidence and her initial complaints to Police did go to the essential features of her (initial) account of the alleged offence.
• [53] What is unclear from the authorities I have referred to above is whether a positive answer to the first central question puts an end to further inquiry effectively because inconsistency which goes to the essential elements of the charged conduct does necessarily raise a reasonable doubt. In BCM v The Queen (the source of the first question), the High Court held that there was not a reasonable doubt because the inconsistencies in the complainant's evidence did not go to the essential features of the offending. Does it follow that, where the inconsistencies do go to the essential features of the offending, there is necessarily a reasonable doubt? Or does one simply proceed to ask the second question? Does it matter that the inconsistencies are not in the complainant's in court evidence, but are between her consistent in court evidence (denying the offending) and an out of court statement or statements (alleging the offending)?
• [54] It seems to me that the answers to both of the central questions may be important in any given case, depending upon all the circumstances of that case. Even if the inconsistencies in the complainant's evidence do go to the essential features of the charged conduct, there may be an explanation for them which does not reflect adversely on the complainant's credit such that a reasonable doubt does not arise. Even if some doubt might be raised,[48] when the complainant's evidence is considered in light of the totality of the evidence, that doubt might be lessened or negatived such that it does not constitute a reasonable doubt. I do not read anything in BCM, or any of the authorities which apply or refer to it, as sustaining the proposition that, if inconsistency in the complainant's evidence goes to the essential features of the offending, a reasonable doubt must necessarily arise.
• [55] Turning then to the second central question, the hearing Judge found that the explanation for the inconsistency between RM's initial statements to Police and her in court evidence was her desire to continue her domestic relationship with the appellant.[49] This was the basis on which to explain the inconsistency, recognising that it is not unusual for victims of domestic violence to seek to withdraw complaints and the conflicting emotions referred to by Southwood J in Warford v Firth.
• [56] A question that arises is whether this basis is a basis 'which does not reflect adversely on [RM's] reliability concerning the essential elements of the offending' (as Grant CJ expressed it in Morluk v Firth). The appellant argued that RM either lied on oath in her statutory declaration as made before Humphries or lied on oath in her evidence in court and, consequently, what she said in the statement could not be accepted as true beyond reasonable doubt. That seems to me to miss the point, which is that RM's conflicting emotions as a victim of domestic violence could be an explanation which does not reflect adversely on the reliability of her initial statements to Police concerning the essential elements of the offending.
• [57] As was acknowledged in both Morluk v Firth (at [40]) and Lynch (at [39]), a witness may be truthful as to some matters and untruthful as to others and the assessment of reliability in those circumstances will depend upon whether there is some logical reason for the rejection of some evidence which does not bear upon the reliability of the witness's other evidence. Hence, in Morluk v Firth, Grant CJ held that it was open to the hearing Judge to reject those parts of the complainant's evidence in which she sought to disavow her earlier evidence concerning the essential features of the offending. Again, conflicting emotions as a victim of domestic violence could constitute that logical reason which would not bear upon the reliability of RM's initial statements to Police.
• [58] The hearing Judge:

(a) rejected RM's evidence that she was forced to make the initial statements to Police, or was simply giving Police what they wanted to hear, on the basis of the body worn footage of her discussions with Carter and the evidence of both Carter and Humphries;[50]

(b) rejected RM's evidence that she made the statements to Police because she was intoxicated, on the same basis;[51]

(c) found that RM knew what was in the statement she gave to Humphries and believed it to be true when she said it, on the same basis;[52]

(d) rejected RM's evidence that she jumped out of the car because of an argument with her family, who were not present, and after the appellant, who was being kind to her, asked her not to jump as not being credible and as being inconsistent with the observations of Ms Uillsone;[53]

(e) found that RM was, in her evidence, seeking to put the appellant in a good light and avoid anything which put him in a bad light;[54]

(f) rejected RM's evidence that the appellant left the scene after she jumped from the car because he was scared and worried about her as being illogical and not credible;[55]

(g) accepted RM's evidence that when she went to see the appellant after she left Hospital, he told her to go away because she got him into trouble, and then told her he did not punch her;[56]

(h) found that the reasons RM gave to Carter on 17 February 2021 (when she sought to retract her initial statement) for making the initial statements (that she had lied, got mixed up and did not know) were unconvincing;[57] and

(i) accepted RM's evidence that she loved the appellant, wanted to stay in a relationship with him and did not want him to be in trouble.[58]

• [59] It has not been shown that her Honour's reasoning in accepting or rejecting RM's evidence was illogical or erroneous. There were logical reasons for the acceptance or rejection of RM's evidence in court, and her Honour had the advantage of observing RM give that evidence.
• [60] Having rejected RM's evidence to the effect that the appellant did not punch her, the hearing Judge when on to consider the other evidence, including the initial complaints to Police, to determine whether she could find, beyond reasonable doubt, that the appellant had committed the alleged assault.[59]
• [61] At common law, complaint evidence could only be received, not as evidence of the matters complained of, but as evidence related to the complainant's credibility, because of the rule against hearsay.[60] Section 66 of the ENULA and its equivalents changed that and permits, subject to fulfilment of certain conditions, complaint evidence to be used to prove the truth of the facts complained of.[61] In this case, s 66 permitted evidence of RM's initial statements to Carter and Humphries to be given by them because those statements were previous representations, RM was available to give evidence about the asserted fact (the content of the complaint - that the appellant punched her after she jumped from the car), she had been called to give evidence, and the occurrence of the asserted fact was fresh in her memory when the statements were made.
• [62] In circumstances where s 66 permitted evidence of RM's initial statements to Police to be received to prove the facts asserted in them, it does not seem to me to be of significance that the relevant inconsistency is not internal to her in court evidence, but exists between her in court evidence (which denied the alleged conduct) and her out of court initial complaint evidence (which asserted the alleged conduct). In the consideration of the two central questions referred to above in the context of alleged domestic violence, I do not see any difference in substance which would compel different answers to those questions or require some different approach to them.
• [63] After a review of the totality of the evidence, I am not satisfied that the hearing Judge must, as distinct from might, have entertained a doubt about the appellant's guilt.

• [64] The appellant's ground of appeal has not been made out. The appeal is dismissed.

[1] The parties were agreed that the relevant passage of the transcript of this footage should be amended to change the word 'hips' as transcribed to 'lips'.

[2] M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493 per Mason CJ, Deane, Dawson and Toohey JJ; PW v The Queen [2020] NTCCA 1 at [107]- [108] per Kelly J and Riley AJ.

[3] M v The Queen at 494 per Mason CJ, Deane, Dawson and Toohey JJ.

[8] SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 at [24] per French CJ, Gummow and Kiefel JJ, endorsed in BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101 ('BCM') at [31] per Hayne, Crennan, Kiefel, Bell and Keane JJ.

[9] Pell v The Queen (2020) 94 ALJR 394 at [37] per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ.

[11] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 at [113] per Hayne J (Gleeson CJ and Heydon J agreeing). This re-expression has been adopted by intermediate courts of appeal across numerous jurisdictions.

[12] Pell v The Queen at [43]-[45] per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ.

[13] Gibson v Firth & Harland [2019] NTSC 26 at [27] per Barr J, citing R v Tait & Anor [1979] FCA 32; (1979) 46 FLR 386 and Salmon v Chute [1994] NTSC 21; (1994) 94 NTR 1 at 24-25 per Kearney J.

[14] Thyer v Whittington [2017] NTSC 66 at [23] per Grant CJ, citing Politis v Federal Commissioner of Taxation [1988] FCA 446, and applying the observations to the reasons of the Local Court.

[15] Ibid at [22], citing Bird v Peach [2006] NTCA 7; (2006) 17 NTLR 230 at [13] per Lockhart J.

[16] Carruthers v Griffis [2000] NTSC 11; (2000) 111 A Crim R 477 at [22] per Mildren J.

[17] Ibid, citing Bartusevics v Fisher (1973) 8 SASR 601 per Bright J; Gibson v Firth & Harland at [27] per Barr J, also citing Bartusevics v Fisher.

[34] The hearing Judge erroneously took this to record the presence of an intraoral injury, but was unable to find whether it referred or not to a cut to the lip. The error is therefore immaterial.

[43] [2017] NTSC 91.

[44] Citing BCM. The Court held (at [46]) that, on the essential features of the victim's account of the offences, she was consistent, and (at [47]) that none of the appellant's criticisms of the victim's evidence disclosed inconsistencies of a kind that led, on a review of the whole of the evidence, to a conclusion that it was not open to the jury to convict.

[45] Citing The Queen v WJM [2004] SASC 345. At [71], Doyle CJ (Besanko and White JJ agreeing) held that the first issue is whether there was an inconsistency between the victim's evidence at trial and what she said in her first complaint, the second issue is whether there is an explanation that makes the inconsistency innocuous, and the final issue is the significance of the inconsistency, citing Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 at 536-537 per Gibbs J. At [79], Doyle CJ held that, if the inconsistencies were explicable in a manner that did not provide a basis for them to reflect on the victim's credit, the Judge's error in concluding that the inconsistencies could not be used to impugn the victim's evidence was insignificant.

[46] [2017] NTSC 75 at [61] per Southwood J.

[47] [2020] NTCCA 6 ('Lynch').

[48] In Morluk v Firth, Grant CJ noted (at [39]) the substantive differences between no doubt, fanciful doubt and reasonable doubt, citing The Queen v Dookheea [2017] HCA 36; (2017) 347 ALR 529 at [34]- [36] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ.

[60] Papakosmas v The Queen (1999) 196 CLR 297 at [12]-[21] per Gleeson CJ and Hayne J (Gaudron and Kirby JJ agreeing).