Schilling v Cartmill [2025] NTSC 40

Schilling v Cartmill [2025] NTSC 40 | Case summary | Zoe

[97]

[14] There was no cross-examination of Officer Risdale.
[15] The prosecutor then tendered a recording of two 000 calls by KS and a medical record from Royal Darwin Hospital concerning the complainant's attendance on 7 August 2023. The medical record was tendered pursuant to the business records exception in the Evidence (National Uniform Legislation) Act. The Judge struck out reference to the word 'assault' from the medical record.
[16] After hearing submissions the Judge observed that the complainant's evidence was 'particularly unsatisfactory'. He said her statement to police on the night was likely more detailed and comprehensive, however, it was not in evidence.
[17] The Judge noted the complainant's evidence that she could not recall or did not know, in response to propositions put to her that she previously told the prosecutor that it was her fault because they had both been drinking and fighting, and that she responded 'Go on then' after the appellant said he was going to smash her.
[18] The Judge found it was possible that both the complainant and the appellant were fighting. He found that there was fighting at the premises, either exterior to the structure itself or/and perhaps including on the road. He found that the appellant did grab and pull the complainant's hair.
[19] The Judge referred to Chief Justice Grant's decision in Morluk v Firth.[4] He observed that this decision 'canvasses the various features of matters like this involving what is generally described as domestic violence. So physical altercations, sometimes one-sided and sometimes as between two parties, and the reasons why it is that complainants don't give an account consistent with the contemporaneous information obtained at the time.'
[20] In terms of consent to assault the Judge found that the test set down in Lergesner v Carroll[5] was applicable. He noted it is for the tribunal of fact to decide in respect of the assault said to have been consented to, whether the degree of violence used in the assault exceeded that to which consent had been given.
[21] The Judge had regard to the 'relative paucity of evidence as to what comprised the fighting'. He considered that the injury to the complainant's arm was established, however, he could not exclude a reasonable possibility that the complainant was pushed or possibly fell.
[22] The Judge concluded on the basis of the complainant's evidence that her hair was pulled which exceeded a degree of violence that the complainant had consented to at the time. On that basis, he found the appellant guilty of assault to the extent that he grabbed the complainant's hair and pulled it. As noted, all other particulars or potential particulars of assault were excluded from the finding of guilt.

[103]

[24] The task to be undertaken by an appellate court in deciding whether a verdict was unsafe and unsatisfactory is set out in M v the Queen:[6] The question which the Court on appeal must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury, or in this instance the Judge to be satisfied beyond reasonable doubt of guilt, bearing in mind the advantages the trial court has when assessing witnesses.
[25] The respondent pointed out that the complainant did not provide evidence which was contrary to any particular of the assault. She was able to decide between evidence which she did and did not remember. It was simply the case that she could not recall a considerable portion of the alleged assault.
[26] The only particular of the assault which the complainant gave in evidence was that her hair was pulled by the defendant. In response to every question about particulars of the assault, the complainant said she could not remember if that particular was true.
[27] In terms of ground 1, inconsistencies, even material inconsistencies between the initial complaint and evidence given would not necessarily lead to the conviction being overturned. In this case there were obvious issues of substantive unreliability, as recognised by the Judge. However, there was also some confirmation or supportive evidence of injury to her head and upper limb in the medical record.[7] The mechanism of injury is partially described, although there is no reference in the medical record to a hair pull. During the 000 calls, it was accepted the complainant said she had an injury to her arm. The complainant did not refer to hair pulling in any of the complaint evidence, including 000 calls. His Honour did not take the complainant to have retracted anything in evidence, but told the Court her memory was very much in question.[8] Her demeanour in the 000 calls was noted as distressed.
[28] The Judge noted that there were "all sorts of reasons" that complainants do not come up to proof, but that "her evidence was particularly unsatisfactory".[9] His Honour said: "It is my finding consistent with her evidence, that there was fighting at the premises, either exterior to the structure itself or/and including on the road perhaps. It is also my finding that the defendant did grab and pull the complainant's hair".[10]
[29] As mentioned, his Honour went on to note that physical altercations are sometimes one sided and sometimes as between two parties. Further, that there may be reasons in domestic violence cases, consistent with the reasoning in Morluk v Firth[11] as to why the evidence of complainants may have features which in some cases lessen reliability.
[30] In terms of the evidence as to the nature of the altercation between them, which his Honour accepted was a fight, or rather that a fight could not be reasonably excluded, he said:

[105]

[31] After discussing the relevant authorities concerning consent to fight, his Honour noted he could not exclude a reasonable possibility the complainant was pushed or possibly fell. He could not rely on other statements for consistency, including the 000 call as the complainant's evidence was largely neutral because of lack of memory and recollection. In any event, his Honour concluded the 000 calls had no relevance in relation to whether the appellant grabbed the complainant's hair.[13] He also observed there was not any specific evidence as to how hard any hair pulling was done in the circumstances having regard to the nature of the force applied, rather than to its extent.
[32] The Judge specifically ruled out that the hair pulling was the cause of the minor head injury noted in the medical record. On the basis that the complainant's hair was pulled, he said that that act "exceeded a degree of violence that the complainant had consented to at the time".[14] His Honour considered that to be the only reasonable inference open in the circumstances and the assault was found proven on the basis that the complainant's hair was pulled.
[33] Given the state of the evidence as it was and accepting the complainant had vulnerabilities similar to many survivors of domestic violence; given that his Honour accepted a fight could not have been excluded with respect to the complainant's injuries, in particular that the graze on her head was not caused by the hair pull, it was not open to infer beyond reasonable doubt that the hair pull took place separately from any consensual fight or similar activity. Such a finding was not supported by the evidence. That finding was not open if, as indeed was found, a consensual fight could not be excluded. A hair pull could not be excluded from broader fighting even taking the fairly neutral evidence of the complainant at its highest.
[34] This was not a case of merely rejecting evidence due to inconsistencies and pressures that the complainant may have been under. Logically, if there was a reasonable possibility of a consensual fight, where the extent of the force used did not exceed the perimeters of the relevant consent, then the hair pulling, being the only particular accepted as occurring, could not be excluded from the same relevant hypothesis. A further hypothesis which his Honour said he could not exclude was that the complainant may have fallen and so sustained injuries.
[35] The respondent submitted it was open to a trial judge to accept some part of a witness's evidence and reject other parts as was contemplated in Morluk. Further, that some matters positively affected the assessment of the complainant's reliability. She could recall there being a fight and some arguing and that she herself was angry that evening. She was unable to recall most particulars of the assault but was clear about a hair pull. She conceded that she had consumed illicit substances and that she was on medication at the time of the offending. Her call to the police corroborated her account that the fight had occurred. She had attended hospital with injuries after there had been a fight which were consistent also with an account of assault.
[36] The respondent notes that the determination of whether a trial judge must have had a reasonable doubt is not to be resolved by conducting a mechanical comparison of the two accounts in order to identify inconsistencies (Morluk) and on that basis both ground one and two must fail.
[37] In most similar circumstances I would agree with the submission made on behalf of the respondent. However, there was no evidence of the initial allegations before the Court. This was not a mere change in evidence. It was an absence of evidence which was being grappled with.
[38] This was an unusual case. The evidence could not in any real sense be tested due to the lack of memory on the part of the complainant and very little other evidential material about the incident giving rise to the charge was available. Such a circumstance, when there is virtually no evidence and what there was could not be properly the subject of questions contributes to a finding that was unsafe.
[39] Having reviewed the material before the Local Court and taking the complainant's evidence at its highest, the conclusion here is the Court must have experienced reasonable doubt as the Court experienced here on review of the record. The reasons for upholding Ground 3 are also relevant to this ground.
[40] Ground one will be upheld.
[41] The remark during the sentencing stage was the Judge being transparent about his thinking at that time. In my view it does not show bias or erroneous thinking during the assessment of the evidence and I have disregarded it.

[106]

[42] The appellant contends that the trial judge incorrectly used Morluk to justify the memory deficiencies of the complainant. A distinguishing factor of the present matter is that the complainant did not come up to proof in her evidence in chief and subsequently recant her evidence in apparent attempts to exculpate the appellant (as occurred in Morluk).
[43] His Honour correctly took an approach which showed understanding of the complainant's circumstances regarding the assessment of her evidence. He mentioned the features of such evidence as described in Morluk. It is well understood that evidence may be recanted due to pressures unique to survivors of domestic violence. Hence, it is accepted that the determination of whether a reasonable doubt arises is not to be resolved by conducting a mechanical comparison of the two accounts given and concluding that a reasonable doubt must arise by reason of the inconsistency. This is the case even when the accounts are "diametrically opposed".[15] That was not what occurred here. The statement made to police was not before the Court. There was no evidence of what took place between the complainant and the appellant. There was no recanting during the hearing as the evidence in chief did not disclose offending save potentially a hair pull. The evidence disclosed a hair pull but in what circumstances that took place was unknown. The injuries were found not to be caused by the hair pull.
[44] In my reading of the Judge's remarks his Honour utilised what was said in Morluk in terms of discussing issues which might affect the complainant's evidence. However, it is not apparent his Honour fell into the error suggested on behalf of the appellant of filling in gaps in the evidence or minimising the unreliability of the evidence. It was reasonable for his Honour to consider Morluk in a general sense when assessing reliability of a complainant in a domestic violence matter. He did not apply it directly to the assessment of the complainant's reliability as her evidence was somewhat removed from the circumstances discussed in Morluk.
[45] Ground two will be dismissed.

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