Criminal Law - Appeal and new trial - Verdict unreasonable or insupportable having regard to evidence - Appeal dismissed - Assault on wife by husband - Acquittals on two of three counts - Open to jury to accept evidence of complainant on one count despite inconsistencies.

M v The Queen [1994] HCA 63; (1994) 181 CLR 487; Pell v The Queen [2020] HCA 12, 94 ALJR 394; Paite v Tasmania [2019] TASCCA 5, 30 Tas R 73; Finnegan v Tasmania [2020] TASCCA 5; Anderson v Tasmania [2020] TASCCA 11, referred to

Judgment Number: [2020] TASCCA 13

1. In February of this year the appellant, Todd Tatnell, was tried before Estcourt J on three counts of assault. The jury, by majority, found him guilty on count 1, but unanimously found him not guilty on the other counts. He appealed from his conviction on the first count, contending that the guilty verdict was "unsafe and unsatisfactory". His appeal was heard by this Court on 3 June 2020. At the conclusion of that hearing, the Court unanimously dismissed the appeal, reserving its reasons for publication at a later date. I joined in the order dismissing the appeal for the same reasons as those published by Brett J today.

1. I agree with Brett J. His Honour's reasons reflect the reasons for which I joined in an order dismissing the appeal.

1. The appellant was charged with three counts of assault. It was alleged that these crimes had been committed against his wife at their family home during the course of an argument between them on 7 October 2018. The jury found the appellant guilty of the first count, but not guilty of the other counts. The trial judge, Estcourt J, imposed a wholly suspended sentence of 12 months' imprisonment and made a community correction order.
2. The appellant appealed against his conviction on count 1. The sole ground of appeal was that the jury's verdict was unsafe and unsatisfactory. On 3 June 2020, at the conclusion of the hearing, this Court dismissed the appeal. These are my reasons for joining in that order.

1. The parties had lived together for several years, and had been married since 13 January 2018. They lived in the home with their two children, a boy aged 7, and a girl aged 5. Although the evidence of the complainant suggested that there was tension in the relationship, there was no suggestion of any previous violence between them. She described their previous relationship as "good", and that they "were best friends really".
2. The day in question was a Sunday. The family had spent the morning fishing. After their return to the family home, the complainant's two sisters and their partners and children arrived for a social visit. The complainant and the appellant both consumed some beer during this visit. The complainant's evidence was that the appellant had consumed more than her, about five or six stubbies.
3. The argument between the complainant and the appellant commenced in the late afternoon, after the extended family members had left, and the appellant was preparing dinner. The catalyst of the argument was an incident in which a pet goat gained access to the lounge room and urinated on a couch on which the complainant was lying with her daughter. The complainant and the appellant argued about who would clean up after the goat, and the argument then progressed into other issues. The complainant gave evidence that this included her questioning the appellant about social media communication between him and another female.
4. The physical exchange commenced when the appellant was leaving the room in which the parties were arguing, through a glass sliding door, in order to exit the house. He was carrying their son at the time. The complainant's testimony was that she threw two glasses at the sliding door. She said that she threw them "out of anger" and with the intention of smashing the door. The appellant and the child were outside the door when she threw the glasses, and both glasses hit the door.
5. The complainant said that she was then assaulted by the appellant on three separate occasions. She said that after throwing the glasses, she went to the bedroom in order to pack a bag and leave, and then changed her mind and returned to the kitchen. On the way back, she met the appellant in the playroom. He was yelling angrily at her and standing close to her. She pushed him away with two hands to the chest. He then grabbed her by the throat with one hand and "slammed" her onto a day bed in the room. He held her there by her throat and punched the wall above her head. She thought he did this in order to avoid punching her. The pressure on her throat prevented her from breathing. She tried to push him off but was too weak to do so. She remembered her eyes closing and then "woke up gasping for air and he's hopped off with this very shocked look on his face and then I hit him". She said she backhanded him to the mouth, which started to bleed. He then renewed the assault by strangling her and backhanding her across the face. As he did this, he said, "you're not so tough now are you bitch". The complainant was slouching against the day bed and the wall when this happened. The appellant continued to choke her using two hands. He only stopped because their son "was in the room telling him to stop". The force applied by the appellant during these events constituted the assault alleged in count 1.
6. The events relevant to count 2 took place immediately thereafter. The complainant's version was that after the appellant got off her when he heard their son screaming at him to stop, she "made a bolt from the room" and went to the bedroom. While in that room, she could hear their son crying and heard the appellant walking up the hallway. She commenced to walk out of the room to return to her son. However, before she had left the room, the appellant took hold of her shoulders and pushed her onto the floor of the bedroom. He then jumped on her and "started strangling" her again. The pressure on her throat affected her breathing, her vision blurred, and her "hearing went funny again ... everything was muffled". The appellant then dragged her further into the bedroom. He then slammed the door and left the room. The deprivation of liberty and the force applied during these events were relied upon to constitute the assault alleged in count 2.
7. According to the complainant, their daughter was in the bath during these events. The complainant's evidence was that as she was lying on the floor of the bedroom, she could hear her daughter screaming. She left the bedroom to attend to her and as she did, she saw her daughter and the appellant going out of the back of the house. She went after them and caught up with them at the appellant's parked vehicle. It was then that the events relevant to count 3 took place.
8. The complainant's version was that the son was in the back passenger seat and the daughter was in the front seat of the vehicle. The appellant got into the driver's seat. The complainant opened the back driver's side door in order to remove the boy from the vehicle. She said that the appellant got out of the front seat, grabbed her and threw her backwards out of the truck. He did this with a hand around her neck. She landed on her back on the concrete. He then jumped on top of her and grabbed her hair. He had his body over hers. She said that he grabbed the side of her head and slammed her head into the concrete and told her to "fuck off". He then kicked her, got back in the vehicle and drove off.
9. The appellant did not give or adduce evidence. However, a record of an interview between police and the appellant conducted the following day was played to the jury. The significant respects in which the appellant's version of events differed from that of the complainant's evidence are as follows:
   • The complainant was in an angry and aggressive mood. The appellant initially left the house with his son because she had spoken harshly to and sworn at the child, and he wanted to avoid any further conflict. The complainant threw a glass before he had exited the glass door. It hit him in the head. She then threw a number of other glasses.
   • He went back into the house because when he was outside he could hear more glass smashing and wanted to tell the complainant to stop doing that. The complainant was in the kitchen when he returned to the house. She had not gone to the bedroom first. The complainant scruffed hold of him in the kitchen and they wrestled into the playroom. During that scuffle, his shirt was ripped and he suffered scratches and marks to his neck. He acted in self-defence to hold her down onto the day bed by her hands because she was punching him. He denied having his hands around her neck and choking her at any time, although he did concede that his hands may have come into contact with her neck during the scuffle. He denied hitting her. He also denied punching a hole in the wall. He agreed that there was damage to the wall but this was caused by the complainant's head hitting it as he pushed her onto the day bed.
   • After the events in the playroom, the appellant gathered his daughter from the bath and took her out to the car. His son was already outside. His intention was to remove the children from the conflict. He denied assaulting the complainant in the bedroom. He said that while he was in his daughter's room getting her pyjamas, the complainant came in and punched him. As he left the room, she tried to grab the bag off him so he grabbed back, pushed her into the bedroom and shut the door. He then left the house with the children. When he pushed her, she fell onto the bedroom floor. He denied applying any other force to her, and, in particular, holding her by the throat or choking her.
   • At the car, the complainant attempted to drag the children out of the car. The appellant told her to leave, that he just wanted to go. She would not, so he pushed her out of the car. He agreed that she fell to the ground, but denied applying any further force to her.
10. The prosecution case also contained the following evidence:
    • The complainant's sister, Tegan Bond, said in evidence that she had attended that afternoon with her partner, Haydon Eisenkoeck. She was still there when the goat entered the house and urinated on the couch. There was tension between the complainant and the appellant after that. She and her partner left in the late afternoon because they had dinner plans. However, at about 6.30pm, she was informed by another family member of the argument and returned to the house. She observed broken glass on the floor and damage to the glass door pane. She gave evidence of the demeanour of the complainant, which was that she was "very shaky", "worried about ... the children", and "she was just very agitated". She also observed injuries, in particular marks on the complainant's neck, her eyebrow and her finger. She gave evidence that the complainant told her "that Todd strangled her on the day bed and then down the hall", and that that was "when she tried to push him away". She said "the only thing I really remember is that they started arguing in the playroom, which is where he first choked her and then down the hall when he was grabbing the children's clothes". The complainant told her that the hole in the wall had come about when she had hit her head on it. In cross-examination, she agreed that what she had been told by the complainant was that the appellant had "strangled her in the hallway when he was going to get the children's clothes".
    • Mr Eisenkoeck said that when he and Tegan Bond returned to the house, the complainant was "very hysterical". He saw the broken glass and swept it up. He confirmed that the complainant had said that the hole in the wall had come about because "her head might have hit it". He observed "obvious bruising to the neck and a little bit of a bruise on one of her eyes". She also had a sore finger.
    • Another sister, Jamie-Lee Bond, gave evidence that she had also attended the house in the morning for a couple of hours. At about 6 pm, she received a telephone call from the complainant who told her that the appellant "had bashed her". She was very distraught and crying. The complainant told her that "he'd hit her in the face and strangled her ... a couple of times". He had dragged her up the hallway by the leg and then left with the children. She said that she had almost passed out. She said that the appellant was very angry. With respect to the events relevant to count 3, the complainant said that the appellant had pushed her out and she had hit her head on the concrete, and then he drove off. Ms Bond went to see the complainant later that night at about 11 or 12 pm. She saw marks around the complainant's neck which looked like finger marks and other markings around her eyes. There were bruises on her arm and a scratch on her leg. She went with the complainant to the hospital later the following day. In cross-examination, she confirmed that the complainant had told her that the appellant had dragged her up the hallway into the bedroom.
    • There was evidence of injuries to the complainant. In particular, photographs taken by the complainant on her mobile phone, and by the police, show bruising to her eye and marks to her neck. The marks appear to me to be consistent with the acts of choking described by the complainant in evidence. They appear inconsistent with the type of possible contact with the neck conceded by the appellant in the police interview. The police officer who saw the complainant about 6.45 pm observed a swollen upper lip with a cut under the lip, as well as marks on her hands, lower legs and knees, and bruises around her eyes. The police officer also observed marks and bruising around the complainant's neck, and marks which the witness described as red welt marks on her upper arm.

1. The directions given by the learned trial judge to the jury included an essential witness direction in respect of the evidence of the complainant, as well as usual directions in respect of the complaint evidence. It was made clear to the jury that they could not convict the appellant of any count unless satisfied beyond reasonable doubt as to the accuracy and reliability of the complainant's evidence. In relation to the particulars of each assault, his Honour directed the jury that they were not required to be satisfied of each of the particulars, but, in respect of each count, must be satisfied beyond reasonable doubt that at least some of the alleged acts had taken place. The jury was also given appropriate directions in relation to self-defence.
2. During the course of deliberations, the jury asked a question in the following terms:

"If there is a view that Mr Tattnell choked Ms Bond, and this considered to beyond reasonable doubt, but there is some uncertainty as to when [sic] this occurred do we need to say there is doubt? There is a strong view this occurred in count one."

1. After discussing the matter with counsel, his Honour responded to the question by reiterating the need to consider each count separately, and that if the jury was satisfied that a choking had occurred, then it could consider that as constituting an assault, but only in respect of the count relating to the events in which the choking took place. It could not use evidence of choking at another time, for example, during events relevant to a different count, in order to constitute the crime under consideration.
2. As already noted, the jury returned a majority verdict of guilty in respect of count 1 and not guilty in respect of counts 2 and 3.

1. Counsel for the appellant, Mr Stevens, accepts that the determinative issue in respect of each count was the jury's assessment of the complainant's credibility. He accepts that the jury was entitled to accept some of the complainant's evidence but reject other parts, that an essential witness direction was properly given to the jury, and that the jury was in the best position to assess the complainant's credibility. He accepts, particularly having regard to the question asked during deliberations, that the majority of the jury must have been satisfied that the appellant had choked the complainant at least once during the events relevant to count 1, and that that had not occurred by accident or in self-defence.
2. However, Mr Stevens points to what he says are important inconsistencies between the complainant's evidence and prior statements made by her. The effect of the inconsistencies is, he submits, that it was not open to the jury to find the appellant guilty of count 1 because it must have entertained a reasonable doubt about the complainant's credibility with respect to that count. He submits that these inconsistencies can be identified in respect of the complainant's evidence as to all counts, and that the combined effect is to undermine her credibility generally. Mr Stevens submits that the inconsistencies support the conclusion that the complainant has invented important aspects of her evidence, including with respect to count 1.
3. Mr Stevens relies particularly on the following:

(a) The complainant's version of the assault in the playroom in her evidence-in-chief clearly described the assault taking place in the separate parts. There were two separate episodes of choking. The discrete parts of the assault were separated by the appellant hopping off her "with a very shocked look on his face" but then resuming his attack after she struck him to the face with the back of her hand. He then strangled her again "but he didn't let me pass out this time". The second part of the assault ended when the parties' son screamed at him to stop and "he got up pretty quick after that".

However, in cross-examination, the complainant agreed that when she spoke with police on 7 October:

• she did not tell police she had passed out;
• the version given to police was that the assault in the playroom consisted of a single episode, not broken by the appellant desisting and then resuming the attack;
• there was only one episode of choking, not two;
• that when the appellant desisted, he just sat on the lounge next to her and did not resume the attack until the bedroom incident.

(b) The complainant implied in her evidence that she had become unconscious as a result of being choked by the appellant during the first part of the assault in the playroom. However, she did not tell police this. Further, there is no record in the hospital notes of her having become unconscious. It is submitted that it can be reasonably inferred that the fact of unconsciousness would have been recorded if it had been disclosed to the treating doctor.

22 Counsel submits that these inconsistencies are telling because the complainant has given fundamentally different versions of the events in the playroom, which are irreconcilable. The inconsistencies are particularly significant in respect of a crucial aspect of the assault alleged in count 1, which is the alleged choking of the complainant. Counsel also submits that the inconsistencies should be considered in the context of the complainant's concession that she had initiated the physical violence.

1. Further, Mr Stevens asserts numerous other inconsistencies between the complainant's evidence and statements made to the police and, in at least one respect, her sister. A number of these relate to counts 2 and 3. Although the appellant was acquitted of these counts, which implies that the jury was not prepared to accept the complainant's evidence on those counts beyond reasonable doubt, Mr Stevens submits that these inconsistencies are generally relevant to the complainant's credibility and provide further context for an assessment of the significance of the inconsistent versions of the events in the playroom. Ultimately, Mr Stevens submits that the combined effect of the inconsistencies is that the complainant's credibility generally, and in particular in respect of count 1, could not reasonably have been accepted by the jury. It follows, counsel submits, that the jury should have entertained a reasonable doubt about the appellant's guilt on that count.

1. The imprecision of a ground of appeal which alleges that the verdict is unsafe and unsatisfactory was recently discussed by Porter AJ, with whom Blow CJ and I agreed, in Anderson v Tasmania [2020] TASCCA 11 at [124]- [125]. Although, as his Honour noted, such a ground can encapsulate and conflate various bases of this Court's jurisdiction to interfere with the verdict under s 402 of the Criminal Code, in this case it is clear enough that the sole basis of the appeal is that the verdict is "unreasonable, or cannot be supported having regard to the evidence."
2. The question for this Court in respect of such a ground has been restated in a number of recent decisions, for example Paite v Tasmania [2019] TASCCA 5, 30 Tas R 73; Finnegan v Tasmania [2020] TASCCA 5; Anderson v Tasmania (above). There is no need to repeat those principles in detail. The essential question for this Court is whether, after making its own independent assessment of the evidence, "it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty": M v The Queen [1994] HCA 63; (1994) 181 CLR 487. This is a question of fact.
3. A finding of guilt in respect of count 1 required acceptance of the credibility and reliability of the complainant's evidence, at least in respect of one or more of the particulars of assault relied on by the prosecution. On her version, the appellant assaulted her, in circumstances which precluded any reasonable possibility of self-defence or accident. Although the appellant conceded in his police interview that he may have unintentionally grabbed the complainant by the throat during the scuffle, her version left no doubt that he had engaged in prolonged and deliberate choking of her on two separate occasions. A finding that he had done so even once during the events in the playroom was sufficient to sustain a finding of guilt on that count.
4. The assessment of the complainant's credibility was fundamentally a matter for the jury. The jury's ability to hear and see the complainant give evidence at the trial provided it with an advantage not enjoyed by this Court. In the joint judgment in Pell v The Queen [2020] HCA 12, 94 ALJR 394, the High Court confirmed that the "assessment of weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been and remains, the province of the jury". It is obvious from the jury's question that it accepted the testimony of the complainant in respect of the events in the playroom as credible and reliable, at least in respect of a finding that the appellant had engaged in one or more acts of choking of the complainant. As already noted, such a finding was sufficient to support a verdict of guilty on this count.
5. Accordingly, as observed in Pell at [39], this Court is obliged to proceed on the assumption that the jury did assess the evidence of the complainant as credible and reliable, at least in respect of the critical events relevant to count 1. The question which arises is "whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy ... the court is satisfied that the jury, acting rationally ought nonetheless to have entertained a reasonable doubt as to the proof of guilt". Mr Stevens' submission is that the inconsistencies between the complainant's evidence and her previous out of court statements to police, considered within the context of the whole of the evidence, ought to have led to such a doubt.
6. As has already been discussed, the major inconsistencies relied upon by the appellant are differences between her description of the relevant events in evidence and that provided to police. The evidence was that police had initially attended the house at 6:45 pm, spoken to the complainant and made some observations of her injuries and damage to the property. She had attended the police station later that evening with her sister. At the station, a police photographer took photographs of her injuries and a police officer prepared a statutory declaration, which was signed by her. When challenged about various inconsistencies between her evidence and her police statement in cross-examination, the complainant's response was, in summary, that when she made her statement to police, she was still traumatised as a result of the events at the house. She noted that she had been assaulted by the appellant, and found the whole process of giving the statement stressful. She agreed that she had signed the statutory declaration but said that "it was just quite late at night and I just wanted to go home". When counsel challenged her about having had the chance to read the document through before signing it, she said:

"Well, I assumed the things that I put across were correctly documented. I'd just been through a horrible ordeal. I just wanted to get out of there and get home_"_

1. When asked why she purported to have a better memory now than at the relevant time, she said that she had had time to refocus and she has "remembered a lot more".
2. Although evidence of a prior inconsistent statement is, once admitted, admissible to prove the existence of the facts asserted in the representation, the primary forensic purpose of adducing such evidence through cross-examination is usually to attack the credibility of the witness. There is no question that a difference between a version given in evidence and a prior statement made by the witness can affect the assessment of the witness's credibility and is capable of showing that the witness is unreliable. That appears to be the purpose of defence counsel in respect of his cross-examination of the complainant on the prior statements made by her to the police, and indeed others. However, the weight appropriately attributed to a demonstrated inconsistency in respect of the assessment of credibility will depend on the circumstances of the case. See Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 per Gibbs J at 536. Many factors may influence the effect of the inconsistency on the witness's credibility. For example, the nature of any explanation offered by the witness for the inconsistency, the jury's assessment of the witness having regard to the manner in which the witness gives evidence and the existence of other evidence tending to support or undermine the witness's testimony may, depending on the circumstances of the case, be important considerations.
3. In my opinion, there is nothing improbable or unreasonable about the complainant's explanation of the inconsistencies when challenged in cross examination about them. In respect of the police statement, her answers were consistent with the objective evidence, that is her statement was made within hours of what she claimed was a traumatic and violent attack on her. She is not a trained witness and it is entirely understandable that, when interviewed by the police, she may not have been capable of describing the events which had just taken place, sequentially and with precision, particularly when she was likely to be emotionally and psychologically affected by the relevant events. Further, although the statement was made in the form of a statutory declaration, the circumstances in which it was made can be distinguished from the formal and dispassionate environment of the court. It can be more readily accepted that a witness giving a version to police may not exercise the same care as to accuracy of detail as can be expected from sworn evidence in court. Finally, evidence in court is given after an opportunity for reflection, and hence can be expected to differ, particularly in respect of matters of detail and sequence, from a version given at an earlier time. This does not necessarily mean that the evidence in court is less reliable. Of course, it is possible that the reliability of the testimony in court might be adversely affected by innocent or deliberate reconstruction, but it can also be expected that dispassionate and honest reflection will bring to mind details overlooked in the initial statement and clarify aspects of the witness's recollection of the relevant events.
4. These are all matters for the jury. In this case, the jury was entitled to accept the complainant's explanation of the inconsistencies. This is particularly so, when the jury's advantage in seeing and hearing the complainant give evidence is taken into account, and her evidence is considered in the context of all of the evidence presented by the prosecution. The prosecution case included objective evidence capable of corroborating the complainant's assertion that she had been forcibly choked by the appellant. The photographic evidence of the marks on the complainant's neck and the medical evidence concerning the petechiae, provided convincing support for the complainant's assertion that she had been choked by the appellant, in the manner she described in evidence in respect of count 1. As already discussed, satisfaction of this particular of the assault alleged in that count excluded the reasonable possibility that the appellant had applied such force in lawful self-defence, and justified the finding of guilt.
5. I am satisfied upon an assessment of the whole of the evidence, and taking into account the jury's advantage, that it was open to the jury to accept the credibility of the complainant's evidence with respect to events relevant to count 1. In particular, it was open to the jury to be satisfied that the appellant had choked the complainant, and to reject his version that he had done no more than hold the complainant down on the bed by the arms in self-defence. The jury's acceptance of this evidence was sufficient to support the verdict of guilt on count 1.
6. For these reasons, I joined in the order dismissing the appeal.