R v Scott

R v Scott - [2023] NSWDC 271 - NSWDC 2023 case summary — Zoe

Approach to conviction appeals

I adopt, as correct, the following statement of principles applicable to appeals from the Local Court (omitting citations) contained in Counsel for the appellant's written submissions (MFI 2 on the appeal): "2. Section 18(1) of the Crimes (Appeal and Review) Act 2001 (NSW) provides that the appeal is a rehearing on the certified transcripts of evidence and the exhibits tended in the Local Court. The proceedings are not an appeal de novo. 3. The court must give the judgment which, in its opinion, ought to have been given in the first instance. 4. The appellant must demonstrate factual, legal, or discretionary error to succeed. 5. That said, the term 'error' has no precise meaning and refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgement of the trial judge will not be set aside unless the appellate judge is satisfied the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of 'error' in the ordinary meaning of that term. 6. The requirement that the appellant show error does not reverse the onus of proof. At all material times, the prosecution bears the onus on establishing guilt beyond reasonable doubt. Demonstration of error can mean no more than satisfying the appellate judge that the magistrate should not have been satisfied beyond reasonable doubt as to the appellant's guilt. An appeal must be upheld unless the appellate judge is satisfied of the appellant's guilt beyond reasonable doubt. 7. The appellate judge must form their own judgment on the facts and determine on the basis of the evidence that was before the magistrate, whether the evidence was sufficient to demonstrate the appellant's guilt beyond reasonable doubt."
However, to this statement of principles, I would add the following, which essentially relate to forensic limitations upon this Court in respect to appeals of this kind: 1. there is no requirement of the Judge on appeal in this Court to undertake a free-standing review of all of the evidence in the absence of guidance and submissions from the parties: Lunney v DPP (2021) 105 NSWLR 236 at [3], [29]-[30]; and 2. the appellate judge is not precluded from referring to the reasons for decision of the Local Court Magistrate and findings by the Magistrate as to the credibility of witnesses: McNab v DPP (NSW) (2021) 106 NSWLR 430 at [73]; 3. in particular, (and as a function of the appeal being conducted on the basis of the transcript and exhibits in the Local Court) where credit findings are made by the Magistrate, the appellate judge recognises the advantage of the Magistrate in hearing and seeing the witnesses; however, whilst recognising that advantage, the appellate judge will, in practice, be focussing on the question whether disputed evidence (especially in a 'he said, she said' type case) is consistent with incontrovertible facts, undisputed facts and other relevant evidence: McNab at [32].
As is apparent, the guilty findings were made in relation to (three) separate incidents. These were helpfully summarised in Annexure B to the appellant's written submissions as 'the Sylvania incident' (seq 3); the 'Lake Conjola incident' (seq 7) and the 'break up allegation' (seq 8). (The other incidents giving rise to charges that were heard, but not proven, in the Local Court, were the 'Pullman Hotel incident' of 1 October 2018, the 'Christmas Day incident' of 25 December 2018 and the 'Boxing Day allegation' of 26 December 2018).
The appellant admits a turbulent relationship between himself and the complainant in the period between 2017 and 31 March 2019; so turbulent that the relationship terminated when, on the last of these dates in the date range, the appellant attempted suicide by driving his car into a tree in suburban Melbourne.
The appellant's case (relevant to sequences 3 & 7) was, and remains, that at no stage did he ever assault the complainant. His case (relevant to sequence 8) was, and remains, that at no stage did he ever threaten to kill the complainant.

[10]

Brandon Smith's evidence

The appellant's Counsel called Brandon Smith as a witness in the Local Court hearing. Mr Smith was and remains a rugby league player. In 2018, he was teammates with the appellant with the Melbourne Storm. In 2018 and in the first few months in 2019, Mr Smith also lived with the appellant in a four bedroom house at Balwyn. Mr Smith said that Savannah Syred was his girlfriend (at the time). He also identified the girlfriends of his housemates, Scott Drinkwater and the appellant and indicated that the girlfriends would sometimes come and stay at the house; maybe six times a year.
Mr Smith said that he never saw the appellant being physically violent towards the complainant. He never heard her say "Stop, you're hurting me" and he was never concerned about the appellant's behaviour towards her. He never saw him swinging a baseball bat around his bedroom and damaging the furniture. Asked in cross-examination whether he had conversations with the complainant, Mr Smith's answer was that he had none that concerned the topic of violence.
Later, it emerged from cross-examination, that Mr Smith had lied when he asserted to Detective Senior Constable Courtney Haine that he had signed a witness statement. He explained, in effect, that he represented having signed it under sufferance because his then girlfriend, Savannah Syred, had wanted him to sign it. He accepted that he did not tell DSC Haine that he did not want to sign the statement because it was 'anti-Curtis'.
Further, Mr Smith accepted that certain parts of a witness statement - which he had not signed - were true. He accepted, for example, that the appellant and the complainant had had a lot of arguments over the appellant being jealous, and had trust issues. He recalled the appellant had told him that the appellant had a broken phone and accepted that the phone had been smashed through the course of a big argument between the appellant and the complainant; which argument, he said the appellant (initially), then (ultimately) Mr Drinkwater had informed him about.

[16]

The complainant's evidence

The complainant gave the following evidence about the Sylvania incident: 1. There were many bedrooms at the Sylvania home. Relevantly, the complainant's parents had a bedroom upstairs, along with the complainant's grandparents and sisters (including her sister, TC). The complainant's bedroom was downstairs; 2. On the evening of 27 October 2018, the complainant was at home (T 20.47). Her relationship with the appellant was 'on and off' in the couple of weeks before. She had attended a friend's place (for a party), whilst the appellant had been out with his friends (T 20.50-21.4); 3. Whilst the complainant could be wrong about the date, she was pretty positive that this was the date (T21.6); 4. Her mother and sister collected her from the party and after getting home (in Sylvania) and having a shower, the complainant went to bed (T 21.17). She could not recall how much later that it took for the appellant to come in but she recalled that it was "a lot later" (T 21.17); 5. The appellant came into her bedroom and the complainant observed that he was intoxicated. The appellant laid down beside the complainant. The complainant moved to the appellant's side of the bed and she cuddled into him. The complainant had her back to him and was asleep (T21.20); 6. Within five minutes, the appellant stood up on the side of the bed in a rage saying, "This is fucking ridiculous. Like you're so - you, you get so cranky at me when I drink" (T21.27). The complainant asked him "what's wrong?" and the appellant said, "You won't even cuddle me" (T21. 42); 7. The appellant got increasingly angry with the complainant and pushed the complainant off him. The appellant then got on top of the complainant and put his hands around her neck. Whilst the appellant had both of his hands around her neck, he was screaming, in a low voice, "You're going to fucking leave me. Why are you like this?" (T22.3); 8. The appellant had his hands around the complainant's neck and was repeatedly pushing his head into her head (T22.20); 9. The appellant eventually got off the complainant and stood at the door saying "I'm leaving. This is the last time you'll ever hear from me. No one will even notice if I'm, if I'm dead by tomorrow. I'm going to take so many drugs and kill myself overnight" (T22.39); 10. The complainant went and shut the door to the lounge room to stop other family members hearing because she was embarrassed (T22.45); 11. The complainant sat on the edge of the lounge and as she was getting up, the appellant pushed her and she fell over the back of the longue where she ended up sitting (T23.11); 12. The appellant "rolled his eyes" and said "For fuck's sake" and came over to her and she thought he was trying to help her up. But according to the complainant, he came over and pushed her back down to the ground as she was getting up (T23.14); 13. The appellant then had the complainant up against a brick wall where she tried to duck down and pull away from the appellant. The complainant had skin off her arm and hands from when the appellant slammed her up against the wall (T23.33); 14. The complainant described the skin off her hands as skin off of her right knuckles and skin off of her left palm and elbow (T23.40); 15. The complainant described the injury to her head as an egg on the back of her head that was sore, as well as a sore forehead (T24.24); 16. The complainant's mother then entered the room when the appellant was squatting down in front of the complainant and then standing up yelling at the complainant (T24.10); 17. The complainant was crying (T24.14);

[24]

Acknowledging the challenge to the complainant's credibility

The Magistrate acknowledged that the complainant's credibility was a live issue. He specifically referred to matters that the appellant's Counsel emphasised in this hearing, being that: there was evidence to the contrary about the complainant's assertion about the appellant being verbally and physically abusive every night in Melbourne; that Lewis Curtis disputed her evidence about the appellant assaulting Lewis; that Brandon Smith denied the appellant smashing up a room at home; and the absence of complaint to Karyn Murphy about the appellant strangling or 'really hurting her' when the highest the evidence got (from the prosecution's perspective) from Karyn Murphy was a complaint that she got bruises when the appellant tried to stop her from leaving him. The Magistrate also alluded to submissions made by the appellant about inconsistencies between the complainant's evidence and that which was contained in her witness statements (T 7).
The Magistrate said that he had regard to all of those matters when weighing the complainant's evidence; and with reference to whether the prosecution established the charges beyond reasonable doubt; but noted that points upon which the complainant had been challenged were (with the exception of the complaint evidence to Ms Murphy) related to the prosecution's evidence of uncharged acts (T 7-8). The Magistrate also recorded his acceptance of the appellant's submission that there were inconsistencies in the two witness statements. Nevertheless, his Honour observed that although the first of those statements lacked detail, it was only a relatively short period of time that the complainant provided a supplementary (second) statement (T 8). His Honour considered, at some length, the process of the complainant giving her witness statements. Emphasis was placed upon the officer in charge, Detective Senior Constable Haine's view that the first statement was inadequate and the complainant's own view, when she read the first statement, that there was a lot missing (T8-9).
The Magistrate alluded to the timing of the Sylvania incident (T 8). Since this was relevant to the appellant's 'time was of the essence point' set out in further detail below, I will defer further consideration of it until I deal with that point generally below.

[28]

Specific findings about the Sylvania incident

The Magistrate repeated that he was satisfied beyond reasonable doubt that all of the witnesses were referring to an incident occurring around 27 and 28 October. I will return to this matter again below when considering the appellant's 'time was of the essence' submission.
The Magistrate observed that if he was to accept the complainant's evidence, and that of other prosecution witnesses, then the element of actual bodily harm would be satisfied by her having sustained a lump to her head and a scratch to her forearm (T 12).
The Magistrate acknowledged the appellant's submission about Exhibit 4 and, inferentially, the photo of the appellant in her athletic gear; however, he determined that the photo was not conclusive of an absence of injuries; noting the angle and distance from which the photo was taken (T 12).
The Magistrate referred to a body of evidence from all of the prosecution witnesses to make out the element of assault. The complainant gave evidence about the appellant 'pushing' and 'launching' against her. There was evidence from Kyla Johnstone hearing noises, including the complainant saying "Curtis stop". Renae Clark said that she was woken up by the complainant and believing that she was being attacked. She saw the complainant on the ground against the wall, with the appellant on top of her, only 60 centimetres away from her. David Clark also came down and saw the complainant against the wall. The evidence of these other prosecution witnesses, although it fell short of direct eyewitness testimony of an assault being perpetrated, fortified the complainant's evidence as to what had occurred before they had entered the room. On the basis of this evidence, the Magistrate accepted, beyond reasonable doubt that: (a) the appellant was present in the house that evening; (b) there was an argument; (c) there was a physical altercation; (d) the appellant placed his hands on the complainant's neck; (e) he pressed his head into her head and pushed her; (f) as a result, she fell over the lounge and ended up against the wall; (g) as a result of the push, she sustained injuries in the lump to her head, scratch to the forearm and wrist. The Magistrate was satisfied beyond reasonable doubt that sequence 3 was made out (T 12-13).

[30]

Generally applicable submissions

Before turning to points that the appellant specifically relied upon in relation to the charges on which he was found guilty, it is convenient to address matters raised by the appellant which were generally applicable to all counts.
First, the complainant did not complain to police until approximately 2 and a half years after the last incident. Associated with this submission was that her family members did not speak to police until after the complainant did.
Secondly, the Magistrate did not give himself a Markuleski direction.
Thirdly, there were general points raised which cast doubt upon the complainant's credibility or reliability, and which were not adequately addressed by the Magistrate: 1. she gave materially inconsistent accounts of the 'Pullman Hotel' incident; 2. she failed to come up to proof on two of the six incidents, giving rise to the Magistrate's dismissal of sequences 4 & 10; 3. her evidence conflicted with evidence of other witnesses given by prosecution and defence witnesses in relation to: 1. an allegation of daily physical and verbal abuse when visiting the appellant in Melbourne; 2. the 'Uber incident' (31 July 2018); 3. her allegation of the appellant assaulting his brother Lewis (12 October 2018); 4. her allegation of the appellant swinging a baseball bat around his bedroom in Melbourne; 5. her meeting with Karyn Murphy, former operations manager of the NRL's Integrity Unit, on 17 April 2019; 6. the evidence of Jacqui Louder, a psychologist employed by the Melbourne Storm (Exhibit 21); 7. Exhibits 7, 8 & 10 (created 4 to 6 weeks after the Lake Conjola incident).
Some of these matters were elaborated upon by Counsel for the appellant further in oral argument.
In relation to the complainant's allegation that she had received physical and verbal abuse from the appellate daily in Melbourne, this was a matter that was contained in the complainant's first witness statement. It was not however, an assertion that was expressly repeated in her evidence in chief. Nevertheless, Counsel for the appellant argued that the assertion might be taken to have been implicitly adopted in circumstances where that assertion, and other assertions (including that she had yelled out 'Stop, you're hurting me') contained in her first statement were referred to her, in cross-examination in the Local Court, and she clarified who she was referring to when she had asserted in the police statement that no one would help her.
On the matter of the first statement, Counsel for the appellant drew the Court's attention, in some detail, to the complainant explaining omissions from her evidence in chief, relative to what she said she had told Leading Senior Constable Ford in the preparation of her first witness statement. That statement was settled on 22 November 2021, the Court was informed, after a concern about a screenshot relating to an Instagram post; and it was on 16 November 2021 that the complainant (in the company of her mother) attended Sutherland Police station to given an account about 'historical domestic violence matters'. It was not the case, as the Crown contended, that the content of that earlier police statement, in terms of its completeness or accuracy, was affected by a preoccupation in her applying for an Apprehended Domestic Violence Order even if at the time that the witness statement was proximate to her applying for that order. LSC Ford was a police officer particularly experienced in dealing with allegations of domestic violence and there were missing from that first statement details (such as actual injuries and witnesses to incidents) which would, it was suggested, naturally appear in a witness statement if they had occurred. An example of this was the injuries sustained from the Sylvania incident. That detail was missing from the first police statement.
Later in reply, in response to a submission raised by the Crown about the significant limitations upon the process of compiling a first witness statement, and the extent to which it could be regarded as an exhaustive statement of the complainant's account, Counsel for the appellant argued that what was significant (from the point of view of the complainant's credibility) was not what LSC Ford asked the complainant, but her multiple assertions, not supported by the police officer, of what she had told him in relation to concerning details of the subject incidents.
So too in relation to the description of the 'Uber Incident'. In her first witness statement, she had not asserted that she was assaulted by the appellant. The complainant agreed with that but said that she had mentioned this to LSC Ford. Also in relation to the 'Uber incident', Counsel for the appellant noted that Scott Drinkwater had given evidence of the appellant following the complainant in his own car after the complainant had taken an Uber ride; but that this was the only incident, resembling, an argument that he had heard between the appellant and the complainant. It was "unusual" and he had never heard the complainant yelling out "Stop you're hurting me", or damage to the furniture in the bedroom in the house that the complainant had stayed with the appellant.
In oral argument, Counsel for the appellant also emphasised Karyn Murphy's evidence. Although she confirmed complaints about the complainant being bruised by the appellant, Murphy said that she had not been informed by the complainant about her being strangled by the appellant or him having "really" hurt her. She did not recall being told by the complainant that the appellant had threatened to kill her. She had said in her police statement that neither the complainant (nor her mother) provided details of acts of physical abuse at all, other than the complainant saying that she had suffered bruising as a result of the appellant (T 229).
Murphy's evidence was said to be especially significant since this was the most contemporaneous evidence of the complainant reporting to a third party; although Counsel for the appellant accepted that Savannah Syred had indicated in her evidence (Exhibit 18, par 6) that after the break-up had occurred (in April 2019), the complainant had told her about being subject to physical abuse (by the appellant).
Later, in reply to a Crown submission, Counsel for the appellant also argued that the Court should reject the Crown's thesis that a reason for the complainant not supplying details of physical abuse was an indication supplied by Ms Murphy that she would be best served not to provide details since if they were passed on to her, she would be required to take certain action. This proposition was not put to Ms Murphy and it was contrary to the evidence that the witness had given (T 229) which did not convey that there was any indication given to the complainant of any impediment to her disclosing details of physical abuse.

[32]

The 'time of the essence' point

The appellant submitted that in the way that the parties had conducted the case, the Magistrate wrongly rejected the defence submission, at the conclusion of the prosecution case, that time was of the essence for this charge. The prosecution did not prove that the incident occurred between 12:01am and 5:00am on 28 October 2018.
On this 'time was of the essence' point, Counsel for the appellant argued that the parties were joined on the significance of the date for the offence in question. That occurred in circumstances where:

the prosecutor had nominated a date for the Sylvania incident, being 28 October 2018. Indeed it did so by application to amend at the outset of the hearing;
the complainant could not recall any particular date when the incident occurred;
the appellant had, by the two photos that were part of Exhibit 4, effectively shown that there was doubt that she sustained the injuries she alleged contemporaneously on 28 October 2018;
the prosecutor had engaged with the issue of the date when the incident occurred by: * effectively disproving (through the use of Exhibit 11) the date when the first of the photos for Exhibit 4 (where the complainant was wearing a bikini on the beach) was taken; and * couching the content of questions to other prosecution witnesses (the complainant's parents) in a way that refrained from specifying a date when the Sylvania incident occurred;
the prosecutor had eschewed the option (which would have been objected to anyway) of seeking leave to amend the Court Attendance Notice to identifying a date range for when the alleged offending occurred.

In his reasons for verdict, the learned Magistrate noted that in the complainant's first witness statement, it was said that the Sylvania incident occurred on 27 October and that other prosecution witnesses were not specific in identifying a date. The Magistrate stated that notwithstanding the other witnesses omitting to nominate a date, he was satisfied, beyond reasonable doubt, that they all were speaking of the same incident of which the complainant complained (T 8).
Counsel for the appellant argued that the tender of the photograph was analogous to an appellant's alibi notice. The only purpose of the tender for Exhibit 4 was to engage consideration of when alleged injuries occurred. The complainant had given equivocal evidence about a date although, Counsel accepted, at its highest, it could be accepted that she was identifying 27 or 28 October. But the prosecutor did not lead evidence from its own other witnesses to support that weak indication from the complainant.
More generally there was doubt about this incident.

[33]

The appellant's 'time of the essence' point

The Magistrate was directed by the parties in argument on this point to the authorities in R v Stringer (2000) 116 A Crim R 198 per Grove J at [20]-[22] and WGC v The Queen (2007) 233 CLR 66 ("WGC").
It suffices, for present purposes, to refer, with respect, to the analysis of Crennan J in WGC, who was in the majority, for the statement of principles at [155]-[158] (citations omitted): "155 It is undoubtedly good practice to frame a count in an information with "all such specificity as to time" as circumstances permit so as to clearly identify for the accused the charges with which he or she needs to deal. 156 However, the general rule is that the date of an offence is not a material particular and need not be proven, unless a date is "an essential part of the alleged offence". The terms of (the relevant statutory provision) were consistent with the general rule. 157 Exceptions to the general rule occur when the conduct of a trial has the effect of rendering a date a material particular or vital as, for example, when an alibi is raised by the defence in respect of a particular date. Equally, the defence, or both the prosecution and the defence, may conduct a trial by treating the date of an offence as not material. 158 Whether or not a date of an offence is a material particular in a case involving sexual offences where the age of the complainant is relevant will depend on the circumstances of the case, including issues of procedural fairness. For example, it would be erroneous to describe the time of an offence (under s 49(3)) as "immaterial" if a jury were left with a belief that it could bring in a guilty verdict even if a complainant were above 17 years of age, or where the prosecution led evidence of different and conflicting versions of the same incident, or evidence equally capable of referring to a number of different occasions. However, there were no such issues of procedural fairness here, where the appellant admitted the alleged acts of sexual intercourse with the complainant when she was under 17 years of age.
It was common ground that the date of the incident was not essential to this particular offence. The appellant had to fall back on the exception identified by Grove J in Stringer that was approved by Crennan J in WGC, that is that conduct at the trial effectively rendered the date a material particular.
As the views of the other members of the majority in WGC, Hayne and Heydon JJ indicate, much of the debate centres around procedural fairness and the need to ensure a fair trial for the accused, in particular.
It is true that at the outset of the hearing, the prosecutor successfully applied (without objection) to amend the particulars to sequences 2 and 3 to substitute 27 October 2018 to 28 October 2018. As indicated, an essential element to sequence 3 was that actual bodily harm was occasioned (by the assault). But the appellant did not suggest that the substitution of one date for another in the particulars of the offence converted the date into being material.
The procedure in the Local Court did not necessitate the appellant's Counsel giving an opening statement, but in this case Counsel for the appellant did provide an opening (22/8/22, T 6-8). In it, Counsel gave a brief account of the appellant's position in respect to each of the incidents which Counsel had prepared a table about (MFI A, which was not before this Court). The Sylvania incident was the second incident in order. After referring to the first of the incidents in order - the Pullman Hotel incident, which was the night of the Rugby League Grand Final (1 October 2018) - Counsel for the appellant said (about what came to be described as the 'Sylvania incident') the following: "Later that month at the complainant's family home in Sylvania, they argued, and the argument resulted in the accused walking out of the house, before returning and leaving the house altogether with the complainant in an Uber" (emphasis supplied)
It may be noted that the reference to "later that month" may be read, contextually, as a reference to the month of October 2018, it being the same month in which it was alleged that the Pullman Hotel incident occurred. Counsel for the appellant gave no indication that any particular date within the month of October was material from his client's point of view. His position, emphasised (from T 8.11), was that although there were arguments between the appellant and the complainant, "at no stage did he ever do any of these things", i.e. the acts of physical abuse alleged, relevantly, in the Sylvania incident (sequences 3 and 2). By his Counsel's opening, the appellant was signalling to the prosecutor and the Court that he was indifferent to whether the offending occurred on 27 October or 28 October or some other particular date "later" in October, being at least after 1 October 2018, when the Pullman Hotel incident occurred.
At T 20.14, the prosecutor directed the complainant's attention to "the evening of 27 October 2018", when the complainant was at her family home in Sylvania. No objection was taken to his doing so. Although the question raised of the complainant, in her evidence in chief, at T 20.45 was leading, in nature, it was not objected to. The evidence continued as follows: "Q . On 27 October 2018 you were at home. Do you recall an incident involving Curtis on that evening where he came - A. Yes. Q. What can you tell me about it? A. I believe that was around the time that we had kind of - we were a little bit rocky .. he went out with friends, and I went to just one of my friend's houses … So, just that night - if this is - I'm so sorry, but with the dates wrong - referring to the wrong date here. But I'm pretty positive that this was the date that - Q. That's fine. What can you tell me about this particular incident that you're recalling? A. Yeah, so I got home quite early. …. I just had a quick shower and jumped in to bed and I was just - I fell asleep to my TV playing that night. And Curtis would start coming in - I'm not too sure how much later because I was asleep, but he did end up coming in a lot later. And he was really intoxicated … he just laid down beside me .. and just cuddled into him.. And then he ended up - I don't even think it was five minutes later, he stood up on the side of the bed in a rage …." (emphasis supplied)
This was not a case, like R v Kennedy (2000) 118 A Crim R 34, where the complainant was insistent upon the offence occurring on a particular day. The complainant then went on (T 21-22) to describe his assaulting her. In my view, the net effect of this evidence, in terms of timing, was that the complainant was saying that the context for the incident started on the evening of 27 October, that she fell asleep at a certain point she did not nominate and sometime thereafter - she was not sure - he assaulted her.
Arguably, the first possible indication that the appellant was attempting to make time of the essence was during the course of Counsel for the appellant's cross-examination of the complainant (commencing at T 77). Initially, Counsel for the appellant cross-examined the complainant for the point of proving that she had omitted to refer in her first witness statement to certain injuries which she said she had sustained as a result of the assault in the Sylvania incident (T 77-78).
But at T 79-80, the course of the cross-examination shifted. The complainant was shown the two photographs that later comprised Exhibit 4 and she was asked to (and did) assent to the proposition that they were posted to her Instagram page on 31 October 2018 and 5 November 2018. It was not put to the complainant that what was depicted in those photographs and the assumed date that the photographs were posted to Instagram might suggest that when she agreed (with what turned out to be varying degrees of confidence) with the prosecutor's question that an incident had its provenance after she and the appellant had been out at separate places on the evening of 27 October and that he got into bed with her "a lot later" (T 21.17) after she had returned home that evening; that she was mistaken in such belief. Nor was it put to her, more directly, that the photographs indicated that she had suffered no injuries at all on that date or any other date in close proximity to it. The complainant was not invited to comment on the forensic significance of the photographs insofar as it bore upon her earlier evidence, in which she assented to the question of the prosecutor that the background to the Sylvania incident (she and the appellant going to different places that night before both returning to her home, and their bedroom, in Sylvania) occurred after she had gone to bed on the evening of 27 October, and the appellant had got home "a lot later".
In those circumstances, I am not persuaded that by the conduct so described, the appellant's Counsel did put the prosecutor on notice that the appellant was intending to raise, as a material particular, the date when the assault underlying the Sylvania incident occurred.
As Counsel for the appellant indicated, the prosecution did obtain a photograph (Exhibit 11) to effectively disprove the suggestion that one of the two photographs in Exhibit 4 was taken on 31 October 2018. I agree with the Crown that had it not done so, the Magistrate would have been left with the misleading impression that there was a photograph, 3 days after an assault that was alleged to have occurred on 28 October, suggesting doubt as to whether she had sustained injuries.
I also agree with the Crown that by tendering Exhibit 11, the prosecution was not joining issue with, or adopting as material, or as an essential particular, that the assault had to have occurred on 28 October 2018. Later, the prosecution adduced evidence from Renae Clark about being woken up at 2:00am or 3:00am on that date. When that evidence was considered alongside the complainant's evidence about the provenance for the Sylvania incident occurring on 27 October, there was already a firm foundation for the Magistrate to find that the incident occurred in the early hours of 28 October. At any rate, having obtained some evidence from the complainant, which may be accepted as not compelling, that the background to the incident from circumstances commenced on the evening of 27 October 2018, from its point of view, the prosecution would not likely have been troubled about the forensic impact of the photos comprising Exhibit 4 and whether they cast doubt as to whether the alleged assault occurred on 27 October or 28 October 2018 or even some time earlier that month. I agree with the Magistrate's view (T 240.16) that the two alternative dates were very close in time. It was vastly different from the scenario concerned in WGC where the forensic dispute centred on whether sexual misconduct occurred in 1986 or in 1989. That being so, I do not accept that by tendering Exhibit 11, the prosecutor was adopting as a material element of the offence that the assault underlying the Sylvania incident strictly occurred on 28 October 2018 rather than 27 October 2018.
Nor do I accept that by refraining from asking other prosecution witnesses their recollections of specifically what date the incident occurred, this amounted to an implied adoption by the Crown of the materiality of date and adoption of the particular date as an essential element to prove. The complainant had tied the incident to her attendance at a friend's party in a period of an on-again-off-again relationship. It was inherently likely that she would have a stronger recollection of dates (fallible as she accepted it was) than her parents, or Kyla Johnston, for whom there was no reason that the date of the incident would be memorable. There was no particular forensic reason why the prosecutor would wish to pin these witnesses down to a date. Indeed, in my view, the absence of inquiry from the other prosecution witnesses about date was consistent with the prosecutor's position that the date when the Sylvania incident occurred was not material.
There is force in the Crown's submission that the circumstances do not fit within, or are analogous to, the two paradigm cases where a date is adopted as a material element: in the prosecutor's case, where a complainant insists a crime happened on a particular date and in the accused's case, an alibi. In both categories, the conduct is definitive and unequivocal in an assertion (or denial) that the crime happened on a particular date. A suggestion that the Crown could not prove actual bodily harm, being marks or a scratch on a forearm and wrist, being occasioned by an assault on 28 October 2018 rendered that date 'material', not only ignores the harm that the Magistrate was satisfied did result from an assault (the lump on the head), but overlooks the obvious possibility that the marks on the body had disappeared within a week. The prosecutor was not on notice by the accused's Counsel's conduct that his position was to treat the date as a material particular.
Moreover, I do not consider that there was any prejudice suffered by the appellant if the prosecution was able to rely upon the offence occurring either late in the evening of 27 October or early in the morning on 28 October [6] . If the point about the Instagram photos not revealing any injuries on 31 October 2018 (when it was erroneously believed that the complainant posted a photo of herself for the first time) or 5 November 2018 was a good one, it would not have mattered whether the assault occurred on either 27 October (in the late hours) or 28 October (in the early hours).
The exception in s 16(1)(g) of the Criminal Procedure Act 1986 (NSW) is not engaged. The conduct of the trial did not effectively render the date a material particular. The Magistrate did not err in rejecting the no case submission on this point.

[34]

The challenge to the complainant's credibility

In his argument, as I understood him, Counsel for the appellant conceded that no single point that he had raised about the complainant's credibility, viewed in isolation, was fatal to acceptance of her credibility. Nor did Counsel for the appellant argue that the Magistrate's positive credit finding about the complainant, to the extent that this was based upon his observations of her demeanour, was controverted in accordance with Fox v Percy principles. Nor was there any indication of any proposition put by him to the complainant in the Local Court hearing that she lied or was dishonest in her allegations or evidence more generally.
As indicated, the Magistrate plainly did consider the opinions of other witnesses about the nature and extent of the relationship between the appellant and the complainant, he did consider the Pullman Hotel incident; he did consider the 'Uber incident'; he did consider omissions or suggested inconsistencies in the complainant's evidence, when compared to the content of her witness statements, in his assessment of the credibility of the complainant and, more generally the strength of the prosecution's case. Further, Counsel for the appellant accepted, during the course of this hearing, that in relation to 'uncharged' acts, the Magistrate was not obliged to accept the prosecutor's evidence on those acts beyond reasonable doubt.
The complaint, at bottom, was one of the adequacy of the Magistrate's reasons for not forming an adverse view of the complainant's credibility or reliability based upon the cumulative effect of the matters that the appellant's Counsel brought to the Magistrate's attention.
In my opinion, the Magistrate was well justified in not being persuaded by the appellant's submission that there was such doubt about the complainant's credibility as to preclude acceptance of the prosecutor's case of each of the charges beyond reasonable doubt.
As to the Pullman Hotel incident, I accept the Crown's submission that the Magistrate's dismissal of the sequences associated with that incident did not imply rejection of the complainant's account of what occurred, with reference to a suggested inconsistency with an earlier witness statement, but represented a standard application of the Liberato direction; which was that when weighing all the evidence, including the appellant's account, he found that account was reasonably possible.
As to the Magistrate's dismissal of sequences 4 & 10, I also accept the Crown's submission that a memory failure in connection with sequence 4 was not fatal in a context where the complainant did not profess an infallible recollection of all of events she described and, in relation to sequence 10, the Magistrate substantially accepted her account in many respects.
The appellant's argument about error arising from the omission to administer to himself a Markuleski direction is rejected. First, it is patently obvious that the Magistrate separately considered the evidence and argument on each charge. Secondly, even if, for the sake of argument, the Magistrate was obliged to direct himself, as a Judge of this Court might when sitting alone in a trial, there was no error. This is because the basic premise underlying the Markuleski direction - that the Magistrate's rejection of some charges (sequences 1, 9, 4 and 10) was because of doubts about the complainant's reliability - was not applicable.
The complainant's statement about being subject to daily physical and emotional abuse appears to me to have been an exaggeration. But I do not place much weight on that. She was a young adult, and if the content of her (predominantly) love letters to the appellant were anything to go by, immature and unworldly. The complainant did not repeat the assertion when she gave evidence (either on oath or affirmation) in the hearing. The assertion was made in the context where the process was in train to obtain an Apprehended Violence Order, which was the complainant and Renae Clark's paramount concern (Exhibit 12), at a point where the complainant was inferentially fearful for her safety from the appellant and there was a reason why sub-consciously she might exaggerate.
The appellant's criticism of the complainant's account about the 'Uber incident' dovetailed with a general point he made about the omissions from the complainant's first witness statement and, more specifically, the complainant's tendency to attribute omissions in that statement to LSC Ford. I tend to agree with Counsel for the appellant that the forensic significance of this rested more in what the complainant asserted she had told LSC Ford rather than his perceived failures to ask relevant questions of her. But this still does not detract from the force of the Crown's argument about the limited purpose of the making of her first statement when the police and the complainant were fully conscious that the first statement was only the starting point of the recording of her evidence and was inevitably going to be supplemented by a much more fulsome supplementary witness statement.
As to the differences between the complainant's account of the appellant swinging a baseball bat in the bedroom, or the appellant assaulting his brother, and the acts of friends of the appellant (and the appellant himself), this does not diminish her credibility. They are simply differences in recollections between the complainant's account and the accounts of two witnesses (Brandon Smith and Lewis Scott) who were patently partial to the forensic interests of the appellant.
As to Karyn Murphy's evidence, the position was slightly complicated. I do not accept the appellant's submission, perhaps made implicitly, that it would have been expected that the complainant would have given Ms Murphy a full and frank account of all the incidents of physical abuse that she alleged against the appellant (and the receipt of a death threat). There was nothing to suggest any relationship of confidence between Ms Murphy, who occupied an important office associated with the professional sport of which the appellant was a participant, and the complainant. She was not a friend to the complainant. The idea of speaking to Ms Murphy was that of Renae Clark; not the complainant; and even then it was preceded by Renae Clark indicating her hesitation in approaching the NRL's integrity unit unless she could be assured that there were no further attempts (presumably from the appellant) to approach or contact the complainant (Exhibit 12). In short, it appears that when the complainant and her mother eventually saw Ms Murphy, the complainant (especially) was guarded. Further, as Ms Murphy acknowledged, the complainant and her mother had indicated to her that they had concerns about reporting to police and the media. This was not because of uncertainty in the complainant's mind about what the appellant had done to her, as it was explained to Ms Murphy, but, instead, they were concerned about the appellant's mental wellbeing. Further still, I accept the Crown submission that a notation which Ms Murphy made (Exhibit 23, p 2) to the effect that if the complainant provided details to her about abuse, Ms Murphy might be forced to report the matters so disclosed to police. That said, I do not accept the Crown's apparent submission that by her conduct, Ms Murphy encouraged the complainant not to disclose details. She was simply pointing out a consequence if details were supplied.
In this context, it was, in my view, hardly surprising that the complainant might think that the meeting with Ms Murphy was not the appropriate forum to ventilate specific details of the abuse - physical or emotional - she believed that the appellant had perpetrated against her.
In my view, what fell from Ms Murphy, on balance, actually enhanced the complainant's credit. Not only did she confirm reports from the complainant about emotional abuse but she also ventured an opinion (amply supported by other evidence which I will return to) that it was sourced in the appellant's jealousy of her; which itself was borne out by the disclosure that she sustained bruises when he had tried to stop her leaving him at times during the relationship. The mere reference to bruising, though not elaborated in detail in the meeting, was a sign of a jealous man exhibiting aggression towards his partner.
There were problems with Jacqui Louder's evidence. First, it was inherently weak. Her evidence about not seeing any physical harm occurring between the complainant and the appellant was hardly surprising (and no more surprising than the evidence of Brandon Smith or other Balwyn housemates not seeing any physical violence themselves): no one suggested that any aggressive urges or impulses in the appellant were entirely uncontrollable by him in the presence of others, including Ms Louder. Secondly, she knew enough about the relationship to warrant her concern about the complainant feeling 'emotionally' safe in her relationship with the appellant; yet did not elaborate upon her reason for being concerned for the complainant's safety, whether that was emotional or otherwise. Thirdly, there is reason for believing that Ms Louder had a greater knowledge of what was occurring in the relationship than that which she had indicated in her statement. I agree with the Crown that Karyn Murphy's evidence (Exhibit 23) indicates that the complainant, or her mother, had informed Ms Louder about the 'whole story' and that it was scarcely credible that Ms Murphy knew more than Ms Louder. When Ms Louder referred to her understanding that the appellant and complainant had an 'emotional relationship', she did not elaborate further on what she meant by that, including her opinion as to the source of the difficulties between the two of them. Fourthly, Renae Clark was patently concerned about the extent of the assistance that Ms Louder had given to the complainant (Exhibit 12). Finally, it occurred to me that, whether intentional or not, Ms Louder was inherently in a position of actual or potentially conflicting duties: a duty, as the Melbourne Storm's psychologist, to the appellant and as someone to whom the complainant turned. Ms Louder's evidence was also a weak reed in challenging the credibility of the complainant.
As to the complainant's handwritten letters to the appellant (Exhibits 7, 8 and 10), in which expressions of love are professed by the complainant towards the appellant, in my opinion, to posit that a person's profession of love for another person is antithetical to being abused by them is to invoke outmoded stereotypical preconceptions of how persons who claim to be victims of domestic abuse respond. The complainant's profession of love for the appellant were manifested in multiple other ways through the course of the evidence, including her responses to his threats to kill himself and even her reluctance to report to police because of her concerns for his mental wellbeing. Before moving from this topic, I note also that the content of Exhibit 7 was another item of proof to establish the appellant's jealousy towards the complainant as a feature of their relationship.
A final point concerned the complainant's delay in complaint until two and a half years after the last alleged incident. It is true that a timely complaint about an incident can enhance a complainant's credit and even afford additional evidence of the underlying truth of the complaint, but the converse does not logically apply. I agree with the Magistrate's finding that cogent explanations were supplied for the delay in reporting to the police. A concern about unwanted media attention towards complainants of domestic violence allegedly perpetrated by prominent Rugby League players was also warranted. A concern about the mental health upon the appellant from bringing complaint was also warranted. This explanation was not a reconstruction. It was given to Ms Murphy. As was also apparent in Renae Clark's text message to Frank Ponissi (Exhibit 12), the complainant's (and her mother's) main concern was to prohibit contact with the appellant; not to get him into trouble with the police.
It is often the case in trials that complaint evidence comes from family relatives, or friends, or persons in a position of confidence or trust with complainants. In this case, the complainant had no need to verbally report what occurred to her: her parents and a sister were privy to some of the incidents of which she complained. The decision to delay complaint was not entirely that of the complainant but, I infer, was contributed to by discussions with her parents, especially her mother about an appropriate course of action.
Overall, the matters that the appellant relies upon to dent the complainant's credibility or reliability are unpersuasive.

[35]

The nature of the relationship between the appellant and complainant

Before moving to specific incidents, I think it is pertinent to reiterate that the evidence as a whole leads me to a firm view that the relationship between the complainant and the appellant was not just 'tumultuous', as the appellant's Counsel would have it, but was punctuated by emotional abuse exhibited by the appellant towards the complainant. This was borne of jealousy towards the complainant. The jealousy had two aspects, in particular. First, there was jealousy towards the complainant's own Instagram public profile. Secondly, there was a jealous concern that the complainant would leave the appellant.
I agree with a submission made by the Crown that, sadly, part of the emotional abuse concerned the appellant conveying to the complainant threats against himself which were accompanied by indications to her that she was to blame for his troubles. This had the design and, as it turned out, effect of instilling emotional guilt in the complainant and it is perhaps not an exaggeration to characterise it as a form of emotional blackmail.
I find, further, again before turning to the incidents in dispute, that the appellant had at least manifested acts of aggression against the complainant to the extent that during the course of their relationship he physically occasioned bruising to the complainant; especially at times when the complainant had indicated that she might leave him. He smashed his own mobile phone. At certain times, he evinced a degree of possessiveness towards her and made unnecessary and unreasonable demands that she comply with his wishes.
With the limitations of a Judge reviewing the record and noting the Magistrate's natural advantages of seeing all of the witnesses and having the opportunity to consider all of the evidence, I find that the complainant was a witness of credit.
In the context of the relationship, as I have found it, I consider that her account of the assault was inherently plausible. His jealousy and fear of her leaving her, as depicted in her account of the lead up to her allegation of the assault, was consistent with my findings of the nature of that relationship and his jealous nature. So too was his threat to kill himself.
I accept her evidence that he was intoxicated. This would have served to further loosen any inhibition he had beyond the jealous and state of rage that he was in. She was not complying with his wishes.
Her evidence about being assaulted, though not directly seen by eyewitnesses, was nevertheless supported by others. Her cousin and mother both heard her tell the appellant to "stop". Her cousin also heard 'thuds'. Renae Clark heard the appellant "grunting". Her parents came upon her. Renae saw the complainant against the wall, with the complainant hovering over her.
Kyla Johnston saw the appellant walking out the door. David Clark could not find him.
I take into account the appellant's evidence, but it comprised, in substance, partly a state of non-recollection (of the complainant suffering any injuries) or bare denial (that he assaulted her). The evidence to the contrary is overwhelming.
I am satisfied beyond reasonable doubt that each of the constituents of an assault, referred to in paragraph 11 above, were established.
The complainant gave evidence of having an egg on the back of her head and a sore forehead. Renae Clark's evidence was slightly different, but she also found a lump and redness of the forehead. Such injuries were consistent with the complainant's description of the assault.
I am also satisfied beyond reasonable doubt that the element of actual bodily harm being occasioned (by the assault) is also made out.
I will now separately consider sequence 7.

[36]

The complainant's evidence

The complainant gave the following evidence in relation to the Lake Conjola offence: 1. The complainant, her sister TC and the appellant were staying at her uncle (Royce Clark's) property at Lake Conjola with her uncle's friends, Shelley and Paul Innes (T35.46); 2. The complainant and the appellant were sleeping in the downstairs bedroom and TC was sleeping upstairs (T36.11); 3. Later in the evening she and the appellant went to bed, and then she heard her sister call from upstairs in her bedroom saying that she was scared to go to sleep and had asked the complainant if it were OK if she joined the complainant and the appellant (T36.26); 4. The complainant agreed and TC came downstairs and laid in the other bed downstairs. TC then asked the complainant if she would come lay with her in bed because she was scared. The complainant agreed and went to lay with her (T37.5); 5. The complainant heard the appellant behind her get up and storm out of the room and slam the door; leaving her and TC in the bedroom (T37.34); 6. The complainant went outside to follow the appellant and asked the appellant what was wrong. The appellant explained that he didn't intend on coming down to Lake Conjola only to spend time with the complainant's family and to have sleep overs with the complainant's sister. Rather, he had come down to Lake Conjola to spend quality time with the complainant (T37.35 - 38.9); 7. The appellant opened a beer for himself and also complained about the mention of his father at the dinner that evening (T 38.12); 8. The appellant then walked down the side of the house to approach the front yard; and the complainant followed him (T 38.28); 9. the appellant said to the complainant "I'm really sick of this. You've pushed me to the edge. You've done this to me. You make me crazy. I'm going to fucking kill myself. I'm going to step in front of a car. I'm going to kill myself" (T38. 31); 10. The appellant was crying so the complainant encouraged him to settle down, before starting to cuddle him (T38.37); 11. The appellant was crying on the complainant's shoulder but then he started to get a hard grip on her and ended up biting her neck. The appellant was shaking whilst biting the complainant's neck. The complainant tried to push him away, but he had a hold of her neck (T38.47); 12. The complainant pushed the appellant away from her and the appellant charged at her, connecting either his shoulder or forehead with her jaw. Her jaw clicked and she fell to the ground (T39.10); 13. The appellant was standing over the complainant saying "Fuck. I'm so sorry. I'm so sorry" and trying to pick her up off the ground (T39.14); 14. The appellant was apologising and trying to lift the complainant off of the ground. The complainant was groggy and couldn't lift her head (T39.15); 15. The complainant started to crawl away from the appellant, and when he realised she wasn't going to stand up he stopped and ran down the road. At that stage, the complainant realised her sister (TC) was standing behind the car; 16. She assumed that TC had seen the whole thing and she asked her - 'pleaded with her' to walk away or go back inside (T39.20). The complainant told her sister to go back inside because she was embarrassed (T39.21 - 39.35); 17. During cross examination, when asked what other injuries, she had after this incident, the complainant said that she had ripped three nails off her hand by falling awkwardly, that she had a skinned knee, cuts on the inside of her mouth and bruising on her arm (T87.16). The complainant accepted that the reference to these other injuries (i.e. those other than the bite on the neck or collarbone) was not made in her earlier police statements.

[37]

TC's evidence

TC was about 15 years of age at the date of the Lake Conjola incident. Her evidence was materially as follows: 1. She was sleeping upstairs at Lake Conjola and texted the complainant asking if she could come sleep downstairs because she was scared, which they agreed to (T138.19); 2. That she came downstairs, and they comforted her for a couple of minutes then the appellant went and sat outside. The complainant went outside to try and get the appellant to come back inside (T139.7); 3. She heard the complainant and appellant talking then they walked up to the top of the driveway. Then the appellant started speaking very loudly and sounded upset (T139.7); 4. She left the bedroom and walked to the car that was parked in the driveway and stood behind it "just to make sure nothing was happening". She was looking through the back window to the windscreen and saw the appellant's body language get aggressive. She observed the appellant's arms being raised and leaning forward towards the complainant (T139.20-139.23); 5. She could hear him getting aggressive and loud (T 139.25) (T139.25); 6. She thought the appellant was walking away when she saw him quickly move forward and then she saw the complainant's body disappear. The complainant had gone behind the car and she couldn't see her anymore. She saw the appellant bend down, disappearing as well (T139.15 - 29); 7. She did not know what body part of the appellant's hit the complainant and she saw him bend down, holding her up by her clothes. She became worried when she saw the complainant's head flop, unable to hold her head up. It was at this point that she knew that the complainant was unconscious. She then walked around the car and yelled out "What's going on? What's going on?" The appellant then dropped the complainant, who fell to the ground, and he ran away. The complainant then asked her to "Go inside, go inside, please just go inside" (T139.21 - 139.39); 8. She did not leave until the complainant walked away following the appellant. She then called her mother and told her what happened. She also told Paul and Shelley to come down because of what she had just seen (T139.41); 9. The complainant "seemed groggy like she had just come out of a concussion" (T142.9); 10. The complainant's "nail was ripped" (T142.15); 11. She did not hear the complainant say anything to the appellant (T 142.49); 12. During cross examination, she accepted that she may have said to Paul Innes "they are fighting and it's really bad. I am scared he is going to hurt her" (T150.43);
Counsel for the appellant noted that TC did not report what she saw; other than statements attributed to her by Paul Innes.

[42]

The Magistrate's reasons

The Magistrate observed that he had regard to the evidence relevant to the incident, including both the witnesses' evidence (apparently a reference to TC's evidence) and evidence tendered by the defence 'as to lighting and the location' (T 13).
The Magistrate determined that the evidence of both the complainant and TC was entirely consistent with the complainant coming into the room and the appellant leaving the bedroom and also the complainant following the appellant (T 13).
What was then in issue was what happened in the dispute. The complainant said that as they were hugging, the appellant bit her; she pushed him back and he charged at her. She realised her sister was standing behind her and asked the latter to go back inside.
The Magistrate referred to TC's evidence about what she saw and Paul Innes' evidence. The Magistrate carefully considered submissions from the appellant that were reprised in this hearing, concerning the adequacy of the lighting and the statement that Paul Innes attributed to her. But the Magistrate accepted TC's evidence that the light was sufficient to see what she said she saw; which was consistent with the complainant's version. Paul Innes' comment did not detract from her evidence. TC's evidence about the appellant charging was compelling and 'overwhelmingly' consistent with the complainant's version (T 13-14). The Magistrate said that 'As a result of this', he rejected the appellant's version about an absence of any physical altercation. The Magistrate therefore found, beyond reasonable doubt, that whilst outside the appellant charged at the complainant, knocking her to the ground (T 14).
However, to establish sequence 6, the Magistrate noted that the prosecution needed to establish an injury amounting to actual bodily harm. Whilst the Magistrate found that the appellant had bitten her, whilst cuddling the complainant, there was no evidence that an injury resulted from it. Further, although TC and the complainant both gave evidence of a nail being ripped, the complainant did not refer to that particular injury in her police statement; so the Magistrate was unable to find that the prosecutor had established that injury beyond reasonable doubt. Thus, the offence for sequence 6 was not made out, but the fallback charge, sequence 7 (common assault) was (T 14).

[43]

The appellant's submissions

The complainant's account was materially inconsistent. In her evidence, she suggested, for the first time, that she sustained several injuries not previously mentioned: broken finger nails, a grazed arm, a 'busted' lip, a cut inside her mouth, a bruised arm.
The reliability of TC's evidence that she was capable of witnessing the assault because of the amplitude of light from the streetlight was in question, having regard to the combination of Exhibits 6 & 24, and Paul Innes' evidence of what he heard her say (Ex 15). As to the level of light, Counsel for the appellant did not dispute that people's eyesight can adjust even to darkness, but emphasised that TC made a highly doubtful assertion.
Counsel for the appellant also questioned the reliability of TC's evidence with reference to her account, raised for the first time in her evidence at the hearing, (when the complainant had also herself only referred to it at hearing) about a ripped off nail.
Paul Innes' statement (made 30 December 2021 - about 3 years after the incident) attributed (at paragraph 7) to TC statements that rose no higher to seeing the complainant fighting with the appellant, which was really bad, and that she was scared for the future: i.e. that he "is going to hurt" the complainant. The implication here was that TC was only concerned about what might happen. Mr Innes himself then stated (at paragraph 9) that they (apparently he and TC) still heard the complainant and appellant arguing downstairs.
Counsel for the appellant was critical of the Magistrate's reasoning. Having (correctly) dismissed sequence 6, apparently because of doubt about whether the complainant had sustained any injury capable of satisfying the element of actual bodily harm, it was submitted that the Magistrate simply preferred the version of the complainant over the appellant's version since the former was supported (albeit to a limited degree) by TC's evidence.
The appellant submitted that there was reasonable doubt about sequence 7.

[44]

Consideration

I accept the complainant's account of the lead up to the incident. Again, it bore hallmarks of their relationship as a whole. It was inherently plausible that the appellant indicated that his expectation when agreeing to travel to Lake Conjola that he would have the complainant all to himself. It was inherently plausible that he would resent the unexpected intrusion of TC into their bed. TC corroborated the complainant's evidence about wanting to sleep downstairs with the complainant and appellant and their agreement (though in his case apparently grudging agreement) to her doing so.
From this trifling cause, a dispute rapidly escalated into his making an irrational, even crazed, threat to kill himself. Because of her love and concern for him, it was inherently plausible that the complainant would try to console him; to assuage his feelings and cuddled him. He was clearly in an entirely emotional state crying.
I have considered the appellant's account of the context. It is possible that he may have had the incident concerning the Christmas Day text in mind (evidence that was solely internalised), but his evidence did not contradict the evidence of each of the complainant and TC about the latter's wish to enter the bedroom downstairs. Whilst his Counsel challenged the strength of TC's recollections generally and probed whether or not they may have been affected by what the complainant may subsequently have told her, TC's evidence of requesting to join the complainant and appellant in their bedroom was not specifically challenged. The appellant did not divulge the content of the verbal argument which he accepted that he had with the complainant. It was the intrusion of TC into his bed which was, I find, the proximate cause for the argument.
In the context which I have described, the complainant's evidence of being bitten and charged at was inherently plausible.
I have considered the appellant's specific attack on her credibility because of her evidence of injuries that had not been referred to in earlier witness statements. I agree with the Crown's response to that submission. It was plausible that when making police statements, when she did, the complainant was focussed upon the injuries associated with the most vivid of the assaults she had alleged were perpetrated upon her - being the bite to her neck - rather than the injuries associated with the other assault she had alleged, resulting in her being pushed to the ground. Her reference to other additional injuries associated with her being pushed to the ground (and it could not be said that those injuries were naturally incompatible with the particular assault she had alleged) was given in response to an open question raised of her under cross-examination. At its highest, the criticism of her was one of omission from the earlier statements; not inconsistency.
This was properly recognised and considered by the Magistrate and partly explains why he rejected sequence 6. It is, however, a significant step to reason from a doubt about the injuries associated with her allegedly being pushed to the ground to forming a doubt about her complaint of being bitten.
I also consider the challenge to TC's evidence of what she saw and the challenge to her credit. This is not a case of two sisters collaborating to give evidence. I accept the complainant's evidence that she did not want her younger sister to see what was happening to her. So I find that, contrary to the appellant's evidence, TC was in the vicinity. I also find that she was at the back of the car to have a viewing of what occurred. I have considered the photos of Norman Street, Lake Conjola (Exhibits 6 & 24). I accept that there were no streetlights which could have yielded light, via electricity, which would have enabled TC to see through the car. However, it was not impossible for her to have seen through the car, even if her vision was limited in the absence of the streetlights and/or obscured, by dint of her position viz a viz the positions of the appellant and the complainant. I accept her evidence that she did see through the car even though, in retrospect, she was mistaken in her evidence about how she was able to do so. At any rate, what she said she heard whilst she was standing behind the vehicle (T 139.24) about the appellant was probative. What was more probative was what she said she saw when in much closer proximity to the complainant: the appellant bending down over her, seeing her sister's head flopping and instantly divining that she was unconscious, and groggy. It was evidence that was scarcely challenged in cross-examination, and it corroborates the complainant's account of being assaulted.
I also agree with the Crown that there was no inconsistency between TC's statement to Paul Innes apprehending future harm being inflicted by the appellant upon the complainant and her evidence.
I am satisfied beyond reasonable doubt that the appellant assaulted the complainant, and that each of the matters that constitute an assault (identified in paragraph 11 above) occurred.
I will now separately consider sequence 8.

[47]

Renae Clark's evidence

Ms Clark said that she was present during the relevant phone call. Her evidence in respect of this phone call: 1. The appellant was saying throughout the phone call: "You're a fucking whore, you're nothing but a fucking slut. I'm going to fucking kill myself. It's all your fucking fault." He was saying "If you don't fucking come back to me I am, this is it, I'm going to fucking hit this tree that." "I'm going to fucking hit this telegraph pole. It's all your fucking fault cause you're such a fucking slut" (T158.10); 2. The complainant wanted to hang up but Renae Clark told her to stay on the phone to get him to safety (T158.6); 3. The appellant said to her, "No other, no other, no other thirsty fuck is ever going to have you. I'm going to kill myself. I'm never going to leave you for any other thirsty fuck. You're coming with me, that's it" (T158.38); 4. He repeated: "I'm going to get in the car, I'm coming up and I'm going to fucking kill you so no one else can have you. Do you fucking hear me you fucking whore? I'm going to" (T158.44); 5. Asked by the prosecutor how the phone call ended, Ms Renae Clark, said she heard him say "I'm going to fucking kill you, you C-U-N-T." Then she heard a crash, and the appellant grunting and moving around. And she could hear him mumbling "its all your fault" (T160.7 - 160.14); 6. In cross examination Renae Clark denied that she might have heard the appellant say he was going to kill himself, rather than a threat to kill the complainant (T166.23); 7. When asked whether she had a negative attitude towards the appellant she said that she actually felt very concerned for the appellant, for trying to take his own life and her daughter with him (T166.48). She said that she was very upset with him for putting the complainant in that situation repeatedly (T167.7); 8. During her evidence, Renae Clark was uncomfortable with saying the words that she identified the appellant said over the phone, due to their profane nature (T157.47); 9. The witness was told to use the actual language she heard and she provided that evidence. It is evident from the transcript that retelling the language used was upsetting to Renae Clark as she accepted the offer of taking a moment, and a tissue. (T158.80).
The Crown submitted that Renae Clark's hesitation to use the kind of language she states she heard, and her distress when repeating the abusive language allegedly used against her daughter, reflect the significance of this event to her, and grounded her ability to recount it in detail, despite some time having passed.

[55]

The Magistrate's reasons

The Magistrate initially directed himself as to the elements of this offence. His Honour reasoned that if the appellant actually said the words attributed to him - Fuck you, it's your fault. I'm going to kill you. I'm going to kill you cunt" - then those words would facilitate a strong inference of an intention to cause apprehension in the complainant about harm. The Magistrate added that if the complainant was telling the truth when she said that she believed that the appellant was going to hurt her real bad or kill her', this would satisfy him of the element of intention for the purposes of the element of intimidation. The appellant's intention was to be inferred from all the circumstances (T 14).
The Magistrate emphasised the way that the appellant had run his defence to this charge. His case was that he only threatened himself. That being so, the Magistrate reasoned, the only issue was whether the words which the prosecutor alleged were spoken by him were actually spoken by him. The Magistrate said he had regard to the evidence on this issue, including the evidence of the appellant (T 15).
The Magistrate alluded to issues identified by the appellant as casting doubt upon the allegation. These included an absence of complaint by the complainant to the Melbourne Storm (an apparent reference to Jacquie Lauder). Ms Syred's evidence went no further than to say that the complainant had told her that the appellant had threatened to kill himself. However, the Magistrate queried whether this was evidence before the crash itself (rather than a report of what was said after it) (T 15).
The Magistrate referred to an abundance of evidence pointing to threats being made by the appellant to the complainant. Both of the complainant's parents' evidence of the content of the phone call was persuasive and consistent with the complainant's version. Based upon that 'overwhelming' evidence supporting the prosecution case (including the complainant's evidence), he rejected the appellant's account. This was not to say that he rejected the appellant's evidence that he had threatened to kill himself. It was the case that he also threatened to kill the complainant as well (T 15).
The Magistrate therefore found, beyond reasonable doubt, that during the phone call, prior to crashing into the tree, multiple threats were made. These included the words "Fuck you, I'm going to kill you. Fuck you it's all your fault. I'm going to fucking kill you cunt. Look what you've made me do. I'm going to fucking kill you. Look at what you made me do. You're a fucking whore. You're nothing but a fucking slut. I'm going to fucking kill myself. It's all your fault. I'm going to get in the car and I'm going to come up and kill you so no one else can have you. Do you fucking hear me you whore. I'm going to fucking kill myself." The offence for sequence 8 was also made out (T 15).

[56]

The appellant's submissions

The appellant gave an account about his state of mind, but this rose no higher than evidence to kill himself; not the complainant.
The appellant referred to what the complainant and Mrs Clark said to Karyn Murphy at the meeting on 17 April 2019; that there was no more than emotional abuse and no specific incidents of physical abuse that had been identified (albeit that the complainant had complained about bruising).
The appellant noted that there was no contemporaneous record of the telephone call.
The appellant referred to contemporaneous representations on the day of the incident, being to Jackie Louder (at 2:24pm) (Exhibit 21, at [22]) and Savannah Syred (Exhibit 18 at [23]). Neither of them referred to the appellant threatening to kill the complainant. In the first of these, as previously noted, the complainant asked Jacqui Louder "Please call this number it's what Curtis is using and he's saying he's going to kill himself". In the second of these, the complainant wrote that Curtis said he was going to throw away all her stuff. … a phone call in which the complainant said that Curtis was going to try and kill himself.
The first time the complainant, Mrs Clark and David Clark said anything about the appellant threatening to kill the complainant was in their respective witness statements, being in November 2021 and January 2022. None of them complained (to police) beforehand. The complainant had also subsequently spoken to her parents.
Counsel for the appellant submitted that it was not, however, his client's argument that the complainant, with her parents, had fabricated evidence about the threat. It more a case of mistake: they thought that he was directing a threat against her when in fact it was a threat against himself.
Counsel for the appellant challenged the credibility of Renae and David Clark. It was observed that according to their evidence, the complainant's parents had learnt of an episode of violence (the Sylvania incident) on 28 October 2018, but strangely, they acquiesced to the complainant travelling to Lake Conjola for Christmas, with her younger sister, TC, in tow.
In reply to a submission that the Crown made concerning evidence of earlier threats that the appellant had made to kill himself, Counsel for the appellant accepted that those threats were made, but drew a contrast that there had hitherto been no expressed threats to kill the complainant.
Further, although the Magistrate had made a composite finding of threats to kill the complainant that the appellant had made on the phone, because of the way that the prosecutor had opened, what was material was whether, at the point right before the impact of his travelling motor vehicle against the tree, he had expressed the threat to kill the complainant. Moreover, it was at that particular point when the Court had to focus on the element of whether, by making the threat, he had an intention of causing the complainant (who was present in Sydney) to fear physical or mental harm.
There was reasonable doubt about sequence 8.

[57]

Consideration

When considering the two earlier charges, I commonly observed that the nature of the relationship was an important contextual circumstance.
That observation applies also to this charge, although for this charge, the context was slightly different. It was common ground that the relationship had broken up. In my view, it was likely that it was the complainant who broke it up. As I have indicated, there was much evidence indicating that the appellant did not want her to leave him or, put another way, he was possessive of her.
Thus, it is consistent with the probabilities that the appellant, who was likely in a negative mental state anyway after criticism of his playing form and was looking for solace, would demand that, notwithstanding the recent relationship break-up, the complainant drop everything to travel to Melbourne (regardless of whatever other commitments she had in Sydney) and would say to her, as Renae Clark said she heard him say, that "no other thirsty fuck is ever going to have you".
The appellant necessarily accepts that the complainant and both of her parents gave credible and reliable evidence about the appellant threatening to kill himself in his call to the complainant. He could hardly do otherwise given his subsequent crash and other evidence (including the messages to Jacqui Louder reporting upon the appellant's threat to himself).
One of the real issues associated with this charge is whether he also threatened to kill her. I am satisfied beyond reasonable doubt that he did. Both the complainant and her mother, although otherwise giving evidence that was different certain respects, commonly gave evidence that the appellant had told her "This is your fault". This was, in my view, another manifestation of emotional abuse which had characterised his relationship with the complainant. His impulse in blaming the complainant had been seen in the context of the Christmas Day text she received, unsolicited, from a third party; it was seen at Sylvania in the early hours of 28 October when she was blamed for being critical of his being intoxicated and not cuddling him; it was seen at Lake Conjola on 28 October when the complainant invited her sister into their bed. She was to blame also because of the profile she had developed through her Instagram activities. I do not suggest that these examples are exhaustive.
I take into account the circumstance of his taking the box containing the complainant's clothes. When he gave evidence, he did not address Savannah Syred's evidence about his taking that box (or boxes) to his car and thereby appropriating the complainant's property or the complainant's evidence of his indication that he would throw the box over a bridge. Was he intending to dispose of them? He did not say. I infer that he was in a vengeful mood towards the complainant, thus fortifying my earlier acceptance of the evidence of both the complainant and Renae Clark about his general predicament being her fault. I accept Renae Clark's evidence that the appellant explained that a reason for killing the complainant was so that "no one else could have" her.
I take into account the strong evidence of the complainant and her parents about quite voluminous threats to killing her within a long telephone conversation.
I place minimal weight upon the absence of a contemporaneous note. The death threats to the complainant were so numerous and, to the ears of the complainant's parents, so vivid, as to make it inherently unlikely that they would forget that the appellant had made them. As explained earlier in these reasons, if, at that point, they were prepared to make a complaint to police, then there might be greater force to the argument that it was likely that they might make a note. But none of the complainant, Renae or David Clark had that mindset. They were not bent, as investigators might have been, upon assembling evidence against the appellant. Considerately, they were concerned about the appellant's mental wellbeing whilst trying to ensure that he kept away from the complainant.
I also reject what I regard, frankly, as a somewhat snide attack upon Renae and David Clark for acquiescing to a situation of enabling the appellant to access not only the complainant but also TC, on their evidence, after learning of violence perpetrated against the complainant. I agree with the Crown's submissions (at hearing) in response to that argument.
I have addressed, generally, the appellant's point about the absence of disclosure of the death threat to herself, to Karyn Murphy. I reiterate that in the context in which that meeting occurred, it was not inherently surprising that the complainant (or Renae Clark) would omit to refer the death threat to Ms Murphy. It is also unsurprising that she would not mention it to Ms Syred. The complainant was preoccupied with getting the appellant's friends (and if necessary, their partners) to help the appellant when she was not in any practical position to do so, beyond providing counselling over the telephone.
I have considered the appellant's evidence and have noted his concession about his making threats against himself which, as I have indicated, he had realistically little forensic choice but to make. However, the appellant was in an emotionally fraught state of mind and in that state, I do not accept that the extent of his recollections of what he said was reliable.
As to the appellant's Counsel point concerning how the prosecutor ran the case in the Local Court, I am also satisfied that at a point close to when he crashed into the tree, he did say "I'm going to fucking kill you, Cunt". This was the evidence of each of the complainant and Renae Clark. Because of other differences in their accounts, I do not find that the complainant and Renae Clark collaborated together in preparing their evidence: this evidence reflected their own independent recollections.
Viewed objectively, this finding might appear counter-intuitive because of its being illogical: the complainant was in Sydney and he was in Melbourne. More to the point, he was just about to steer his motor vehicle into a tree. How could he utter a threat about killing the complainant at about the point where his vehicle was about to drive into a tree, when he patently could not deliver on it?
Such reasoning assumes, however, that at all times during that fateful drive, the appellant was intending to carry out a threat only to kill himself. I do not make that assumption. As the Crown stated, many times in the evidence, the appellant threatened to kill himself, even over innocuous things; but he had not hitherto tried to do so. It was no less illogical to an objective observer than the reasoning underpinning the appellant's demand that she instantly fly to Melbourne. Indeed, the expression of such demand, was inconsistent with the notion that at all times in the call, it was inevitable that he would make an attempt on his life.
The appellant was plainly emotionally over wrought. I find that he had made many threats to kill the complainant during the conversation. It is conceivable that making the threat as he did, about the complainant, as he was on the verge of veering off the road, was consistent with, sadly, a jealous and self-pitying man, and who was vengeful towards her; and that, consistently with other threats that he had made to himself, for which he wanted the complainant to feel guilty about, on this particular occasion, but through a final act of elevated emotional abuse, he made the death threat to the complainant. I find it probative Renae Clark's evidence that after hearing the crash, she heard the appellant blaming the complainant.
I am satisfied beyond reasonable doubt that the appellant threatened to kill the complainant during the call.
Did the threat amount to 'intimidation' within the meaning of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)? As indicated earlier in these reasons, that required proof beyond reasonable doubt that the conduct causes in the complainant a reasonable apprehension of injury to her. This strikes me as amounting to a partly objective test; that she did apprehend injury to herself and that such belief was reasonably based.
It may be accepted that the death threat to her would not have caused in the complainant an apprehension of the infliction of imminent injury upon her. Of course, she, at that point, was situated in a different State to the appellant. But there is no reason, in my view, for reading down the element in s 7(1)(c) in that way.
I take into account that hitherto, the complainant had heard multiple threats through the same conversation from the appellant to kill himself; which he had not (to that point) carried through with. On earlier occasions preceding this incident, her response was to try to support him, as best as she could, by words or conduct (such as cuddling him) when she was in his presence. But on 31 March 2019, she was not in his presence and there was little she could do other than to speak with him and try, as she did, to contact the appellant's friends in Melbourne to get them to try to help the appellant.
Nevertheless, the complainant had a tendency (which was creditable to her) of taking the appellant at his word. I find that she did apprehend that he might injure her. She never appeared to diminish the threats he had made to her that were directed to himself. But she was in no position to predict, one way or the other, whether he would carry out the threat he made to kill himself in such a way that would preclude the possibility of his implementing the threat against her. Around the time of the 'Uber incident', she had seen him driving erratically behind her, but did not end up trying to harm himself. For that matter, and expressing the matter as sensitively as I can, she could not predict that even if he did implement the threat to kill himself, (a) his attempt would succeed; and (b) if he survived any actual attempt on his life, he would not later come for her.
Relevant also is that this was the first time a death threat had been made to her; in a context where she had broken up with him. I consider that a person in her position would have felt that because of on-going jealousy and resentment to her, manifested in the explanation he gave her as to why he was going to kill her, a reasonable person in her position would have felt that the appellant was unable to let go of the relationship and that his threat was genuine.
I am satisfied beyond reasonable doubt that the appellant's conduct caused a reasonable apprehension of violence to the complainant.
The third and final element for this offence concerns the complainant's mental element.
The relevant intention here is one to instil (in the complainant) fear (of physical or mental harm) from the threat. It is not an intent to implement that threat. Thus, the circumstance that the appellant threatened to kill the complainant in close temporal proximity to the appellant's act of driving into the tree provides no answer to this particular element.
The appellant would have known that the complainant had treated seriously his multiple threats to kill himself. He would have known that she feared for his safety; be it his physical or mental health. In his state of mind, that was part of the point in making threats to himself and, in my view, a feature of emotional abuse towards her. A question arises whether or not he knew that she would likely treat seriously (in the sense of 'fearing') any threat to kill her and react to that.
As I have indicated, intention can be proven by inference. Further, a person's acts may themselves provide the most convincing evidence of their intention. Where a specific result is the obvious and inevitable consequence of a person's act, and where the person deliberately does that act, it may readily be conclude that the person did that act with the intention of achieving that specific result. I am inclined to find that the death threat was deliberate. I also am inclined to infer that the complainant fearing for her physical safety was an obvious and inevitable consequence of that deliberate act.
The appellant, who bore no onus on any element for this offence, understandably did not give any evidence of his intention or knowledge when making (what I have found) the death threat to the complainant on the contingency that he was found to have made the death threat to the complainant. Forensically, it would have been awkward, to say the least, for him to have given give such evidence. Nevertheless, it remains the position that, although the prosecution carried the onus (also) of proving the mental element for s 13, as was observed in Weissensteiner v The Queen (1993) 178 CLR 217 at 227-229, and reaffirmed in Baden-Clay at [50]-[51], hypotheses consistent with innocence may cease to be reasonable in the absence of evidence which, if it exists at all, must be within the accused's knowledge. The appellant gave no evidence to supply a reasonable contrary hypothesis, as to what his mental state (intention or knowledge) was as to what he meant by the threat or his expectation of how the complainant was likely to respond to it. I take this omission into account.
I have indicated my view that the appellant was in a vengeful state of mind towards the complainant. Another way of describing it was that his state of mind towards the complainant was punitive. In my opinion, consistently with that characterisation, when uttering the death threat, I am satisfied beyond reasonable doubt that he intended to cause fear in the complainant for her physical or mental harm and, further or alternatively, that he knew that his death threat was likely to cause her fear.
I find that the offence for sequence 8 is made out.

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Judgment (59 paragraphs)

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Legislation Cited (4)

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Cited By (7)