Teuma v R [2026] NSWDC 36 | Case summary | Zoe

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Teuma v R [2026] NSWDC 36 | Case summary | Zoe

It is appropriate to start with the elements of the offences.
The choking offence has the following essential elements:
the defendant intentionally choked another person.
the choking occurred without the person’s consent.
There was no question about whether this second element was made out. The issue in the Local Court was whether the appellant intentionally choked the complainant.
In the Local Court, the prosecution sought and obtained leave to amend the charge to specify that the alleged chocking occurred between 5pm and 9pm on 6 August 2023.
The element of choking was interpreted in GS v R; DPP (NSW) v GS (2022) 107 NSWLR 618; [2022] NSWCCA 65 (‘GS’). There Payne JA (Rothman J and Harrison J agreeing) indicated (at [63]-[64]) that this essential element required satisfaction that the defendant’s intentional application of pressure to a victim’s neck was capable of affecting the breath of the person or the flow of blood to or from the head.
Payne JA said in GS, at [49] said that the conduct of “intentional choking” does not require separate proof of an actual or even probable consequence of the kind (found in ss 37(1) and (2)), namely that the victim is rendered unconscious, insensible or incapable of resistance following the intentional application of force. But as Counsel for the appellant later emphasised at the hearing of this appeal, his Honour said (at [63]) there must be more than merely any manual pressure on the neck, no matter how slight and no matter where on the neck it is applied. On the facts in GS, the pressure was applied on the back of the victim’s neck, and it was determined that that force was not capable of establishing the element.
As I interpret the Court of Criminal Appeal’s construction of this element, what is critical is that the intentional application of force to the victim’s neck is capable of generating the consequences, that is of the victim being rendered unconscious, insensible or incapable of resistance. That bespeaks the possibility of the force entailing those consequences; not the probability that they would do so let alone the actuality of those consequences eventuating.

It was uncontroversial that the complainant and the appellant had been in a domestic relationship for some years: the complainant estimated that it was four years and 9 months; an estimate that the appellant later agreed with. They had had their own relationships before and children from those earlier relationships. There were also different places where they lived. The appellant had a farm at Qurindi. She lived in a house that the appellant owned in Murrurundi. According to the complainant, they alternated between living at those places. There was some evidence that the appellant had asthma, and has prescribed medication, Seretide, to help him cope with that.
On 12 December 2024, Constable Christopher Day spoke to the complainant, after which a statement was obtained for her for the purposes of preparing a provisional ADVO. The PINOP said she telephoned police and complained that the appellant would not leave and would not allow her to leave.
There was body worn footage of the complainant’s complaint to a police officer at about 8:30pm that was played in the Local Court (Exhibit 11) and replayed in this Court on appeal. In the course of the conversation the complainant reported that an hour earlier she had told the appellant that their relationship was over; something which she said she had told him numerous times before. But from about 7:00pm, he had consistently ‘hounded’ her and had taken steps to stop her from leaving the premises. She said he had threatened to ‘ruin’ her.
It was this report that set in train the issue of apprehended violence orders in her favour against the appellant. An enforceable ADVO was served on the appellant on 14 December 2024.
More materially however, for present purposes, was that in the course of the body worn footage, the complainant was asked by the officer whether the appellant had ever been violent to her. This prompted the complainant to say that there had been an instance (she did not specify a date) when he had ostensibly hugged her but she had sustained a blackout, which in turn prompted her to slap him.
A COPS event was entered in the Police computer system on 13 December 2024 (part of the document was Exhibit 14 in the Local Court). That entry recorded the PINOP’s report that the relationship had ended in about the middle of 2024, that at 6pm, the appellant was returning the child to the PINOP’s care. They then had a conversation in which the PINOP described the appellant as ‘badgering’ her about why she had broken up with him. The PINOP indicated to the officer that she felt demeaned by this. The part of the COPS event that was in evidence did not refer to the incident when the complainant had said that she had ‘blacked out’.

As at 6 August 2023, the complainant was 6 months’ pregnant. On that day, the appellant attended Murrurundi Hospital with cold or flu-like symptoms. The appellant said he was so sick that he could barely walk and was even bringing up blood. On the Crown case, he was displeased that the complainant did not accompany him and they had an argument.
The complainant explained that around 4:30 – 4:45pm she drove to Wingen to drop off her two eldest children. She was aware when she left home that the appellant had gone to the hospital.
There were some text messages that passed between the complainant and the appellant on 6 August 2023. These were Exhibit 8 in the Local Court. There were some early messages, that is before 6:05am in the morning and an indication that the appellant was not feeling well. A message at about 3pm indicated that he was leaving to go to the hospital. At about 5:40pm, he indicated that he was leaving the hospital on the understanding that he would take home medication prescribed for him and be looked after (by his partner).
The complainant estimated that she returned home at about 5:30pm and that the appellant arrived home at about 5:45pm. After they had arrived home, she said that they began to argue. She later indicated that she had gone to bed quite early. The couple went to bed and the appellant asked her for a hug, but the complainant had her back turned to him. She explained that she was not going to hug someone with whom she was upset with.
As Counsel for the appellant later submitted, there were variations in the complainant’s account as to what next occurred. The complainant said that at one stage the appellant rolled her over and put his arm around her neck, placing it around her chin and mouth area and that he held her for about 20 seconds whilst she was trying to push him away. She said she could not breathe and her face became ‘red – hot’. She separately said her nose and mouth were covered with her chin pushed into her neck. She described her nose and mouth as being in the crook of his elbow, which then went up against her throat. She said she was screaming to let go and thrashing her arms and legs. She said she ‘blacked out’, with her whole body going weak, although in cross-examination, it was pointed out that she told police in her DVEC that she was (only) “seconds away” from blacking out. This was a matter which she had sought to clarify when she gave her evidence in chief. She said that at a point where she had stopped moving, the appellant told her that all that he wanted from her was a hug before he let her go.
She was also challenged about her account of the assault. It was put to her that the appellant only hugged her and, moreover, contrary to her account, she continued to stay the night in bed with him. She disagreed with that version of what occurred.
After she was released, the complainant said that she slapped the appellant on the face, then ran outside and hid outside the shed in the backyard. She recalled that at the time that she vacated the property, the sun was setting.
There, the complainant said, she waited for two hours before she came back, and went inside the bathroom. She chose to go into the bathroom because it had a lock. She later said that it was dark when she went back into the house.
There, she said, she stayed the night. The complainant said that the appellant banged on the bathroom door a few times, but there she remained. She said that the next morning, she heard him leave at about 7am; at which point she left the bathroom.
I referred earlier to text messages between the complainant and appellant on 6 August 2023. At about 6:32pm, the appellant composed a longer text. It read as follows:

The complainant said that she saw it only the following morning, after the alleged assault, at about 7am. She was challenged on this, but explained that in leaving the bedroom, she did not carry her phone with her. Her phone and keys were in the back living area.
She said she attended work, but only for a brief period as she said was tired from events the night before and was unable to focus on work. She noted an entry that she had inserted in her personal diary recording that she worked for half the day (Exhibit 10 in the Local Court). There was a rental inspection that she needed to attend to. After returning home, she took a photo of a bruise on her shoulder (Exhibit 6 in the Local Court). There was evidence that the photograph was taken around 1:03pm on 7 August.
On 18 December 2024, the complainant participated in a DVEC at her home. In the DVEC (which was played in the Local Court and replayed in this Court), amongst other things, she gave an account of what occurred on 6 August 2023. She said she went to bed and the appellant demanded that she give him a hug. She said that her chin and throat were in his elbow and that he held her for about 20 seconds. She said she thought that she was seconds away from blacking out. As he let go of her he said “All I wanted was a hug”. She said that she could not shift him and that her face felt red hot. She said she felt scared: she was pregnant. She said that he had intimidated her and made nasty comments about her son. She said that he had made threats against her, including that he would ‘ruin her’. He had threatened to kill her horse two months before.
The complainant prepared some handwritten notes. These were Exhibit 10 in the Local Court hearing. She said she would have written those notes in January or February 2025. She explained that the lawyer representing her in Family Court proceedings advised her to write down any notes about any incident that she would class as ‘abuse’. As will be seen, she was referred to these notes again at the hearing of this appeal.
On 11 March 2025, the complainant sent an email to Constable Christianson in which she provided further information about the incident on 6 August 2023; in which she asserted that the appellant did not loosen his grip until she went limp. She described the feeling of drifting away and going weak. This email was admitted over the appellant’s objection in the Local Court (Exhibit 13), but it was subject to a limitation that it went only to her credit as a prior consistent statement. The then Counsel for the appellant later cross-examined the complainant on it in the Local Court hearing.
On 7 May 2025, Senior Constable Michelle Bojowski received a tip-off from the complainant that a neighbour of the complainant’s had received a confession from the appellant of having choked the complainant. However, after pursuing the neighbour, SC Bojowski reported that the neighbour had indicated to her that the appellant had denied choking. According to the officer, the neighbour declined to provide police with a statement.
It was put to the complainant that she had a motive to lie about the incident in that she thought that she would obtain some advantage because of family law proceedings. She disagreed.
The appellant denied the complainant’s account. According to his version, after he returned from hospital, he went straight to bed, though he could not say at what time (at that point). There was no argument beforehand. He said he sat upright because of his health issues. He was in bed before her, although could not recall what time she entered the bed. He denied choking her. He said that at a point when he realised the complainant was in bed with him, he leaned over and gave her a hug and kiss and wished her good night. Thereafter he went to sleep; although he acknowledged that he did get up in the night to go to the toilet every hour and a half. He did see the complainant in the bathroom, having a shower. Otherwise she was in bed with him.

The learned Magistrate commenced by directing himself as to the standard of proof and the onus of proof borne by the prosecution. His Honour appreciated that this was a ‘word against word’ case and, in that circumstance, acknowledged that credibility findings were important. He directed himself that he was at liberty to accept part of a witness’ evidence whilst rejecting another part. His Honour gave himself a Murray direction. He also gave himself a Liberato direction.
The Magistrate noted that the alleged choking incident grew out of or was connected with her complaint that an AVO had been contravened.
After setting out the protagonists’ competing accounts, the Magistrate noted that the appellant said nothing in his evidence in chief about the text he sent to the complainant at 6:32pm. He was cross-examined on it, but gave no satisfactory explanation for why he sent it. The Magistrate observed that the content of the text was inconsistent with the notion, implicit in his case, that he and the complainant had not had an argument. It was, rather, consistent with the prosecution case that there had been an argument, followed by an assault. The photograph of the complainant’s bruised shoulder was also supportive of the complainant’s account of being assaulted. The Magistrate said that he did not believe the appellant; finding that his evidence lacked credibility.
The Magistrate stated that he was impressed with the complainant as a strong, reliable and truthful witness. Her evidence was consistent and made sense. It was (to an extent) corroborated by photographic evidence and the text message the appellant sent her at 6:32pm. She took the photo to arm herself to go to the police station, but not with the primary purpose of reporting an assault perpetrated upon her.
His Honour found that the appellant’s actions resulted in the complainant having difficulty breathing, and feeling significant pressure to her neck and throat and if not actually blacking out, she went very close to that. The prosecution had established the offence.

The fresh evidence concerned two subjects. The first was Telstra phone records of the appellant. As indicated, last November Judge Krisenthal had granted leave to the appellant to rely on this evidence at the hearing of the appeal. I marked it as Exhibit 2. The second subject was the state of light on the late afternoon or evening of 6 August 2023. The Crown did not object to the tender of the expert certificate (Ex 1 in the appeal) of Associate Professor Brad Tucker, the Astrophysicist and Cosmologist. Professor Tucker appended to an expert certificate an extensive curriculum vitae.
Dealing with the first subject of the fresh evidence, and placing it in context, in the Local Court, the complainant estimated that she had arrived home at or around 5:30pm on the afternoon of 6 August 2023. She maintained that estimate at the hearing of this appeal. She had said in her evidence in the Local Court that the appellant had returned home from hospital around 5:45pm. She also reiterated evidence given in the Local Court that the appellant was upset and argumentative with her. In the hearing of this appeal, she also maintained that she was home when the appellant arrived home. She said she went to bed first, and the appellant joined her one or two minutes later.
To reiterate, the appellant’s account in the Local Court was to the effect that he was at home at 5:45pm (5 minutes or so after he sent a text message at 5:40pm). The appellant also thought that the complainant was home (18/8/25, T 38.14) by then. This apparently agreed fact has some significance for evaluating the Telstra records later in these reasons. Upon his return, he said he “would have” gone straight to bed, after taking the steroids he obtained from the hospital; denying that any argument occurred.
At the hearing in this appeal, the complainant remembered receiving a short phone call from the appellant shortly after 5pm. She said she thought that the appellant rang her to check on her picking up of children. The Telstra records of the appellant (Ex 2 in the appeal) indicated that the appellant placed a call with the complainant at around 5:07pm.
The Telstra records also show that at 5:44pm, the appellant made a long call to the complainant’s mobile phone, exceeding 23 minutes in duration. By then, on the complainant’s account, both she and the appellant were at home. At the hearing of this appeal, the complainant accepted that it was unlikely that they would have a phone call whilst the two of them were at home, but said that she did not recall receiving the call.
On the second subject of the fresh evidence, in notes that she had prepared in January 2025, concerning the incident that had occurred on 6 August 2023, which she passed on to police, the complainant recorded her recollection that after releasing herself from the appellant’s hold over her, she ran into the backyard, where she hid behind a shed in the long grass. Her recollection was that this occurred at sunset and she could only just see where she was going.
The gist of Professor Tucker’s evidence was that on 6 August 2023, at the relevant location in Murrurundi, sunset occurred at 5:22pm with ‘civil twilight’ ending at 5:50pm. The latter time was significant in the sense that from that point on, large objects were unlikely to be discernible in the absence of moonlight or artificial light.
When she was shown Professor Tucker’s analysis, the complainant placed the time that she was outside as being at the ‘End Evening Nautical Twilight’. At that point, Professor Tucker’s analysis indicated that it would have been 6:18pm.

Counsel for the appellant made her submissions orally.
The thrust of Counsel’s submissions is that there were too many problems with the complainant’s evidence to enable the conclusion to be drawn that she was truthful and reliable. Without that, the Crown was unable to make out the offence beyond reasonable doubt.
She had given numerous accounts of the incident, and the details associated with it, in which there were inconsistencies in the accounts. The topics in which it was suggested the inconsistencies arose included the circumstances in which she said that the appellant went to the hospital on the day of the incident and when he returned from hospital. There were also inconsistencies in her account of the mechanism by which she complained that the appellant had choked her and whether she had actually blacked out or was only seconds away from blacking out. There were differences also in her accounts as to how long she said that the appellant held her, and what she wore when, on her account, she fled the home to escape into the backyard; behind the garden shed; and how long she remained out there before returning inside the home. There were differences in the accounts she gave as to when the alleged incident occurred.
There were other matters as well, indicating differences between her evidence and other evidence in the case. First, she told a police officer that a neighbour had told her that the appellant had confessed to the incident. But when that was pursued, the officer received a report from the same neighbour that the appellant had made no such confession (this hearsay evidence was admitted without objection).
Then there were the Telstra phone records, which the Magistrate did not have the benefit of considering, but this Court did. The appellant’s Counsel emphasised the 23 minute phone call that took place at 5:44pm which would have ended around 6:08pm; and the short call that occurred earlier at 5:07pm. The shorter call would have occurred at around the time the appellant was in hospital. Counsel submitted that it was curious that the appellant could recall the content of the shorter call but not the longer call. It was also curious that the appellant would be thinking of checking up on the kids when making the shorter call around 5:07pm when he would have been in hospital or preoccupied with his health. Counsel submitted that if, as the complainant had explained, the appellant had been arguing with her or expressing displeasure with her because she was not sufficiently supportive of him during the day, and that the argument occurred during the course of the telephone call, it might have been expected that she would have remembered that.
Counsel for the appellant submitted that these matters provide context for doubting the real reason for why the appellant apologised in the text message at 6:32pm. It may have had something to do more generally about the state of their relationship.
The appellant’s Counsel pointed to the aspect of delay in her complaint. It was said that the complainant had a tendency to add more detail, unfavourable to the appellant, as time wore on.
All these things weighed negatively upon acceptance of her credibility and reliability.
The appellant submitted that other evidence in the Crown case did not have much weight. Although the photograph of the bruising was accepted as having been taken the day after the incident, given the nature of her description of a struggle, it might have been expected that other injuries would have been apparent on the complainant’s body.
The diary entry of the next day, indicating that she only partially completed work, did not advance the prosecution’s case. At a time when she was pregnant, issues associated with that might equally have explained why she was unwell.
Finally, the appellant submitted, in the alternative, that if her version was accepted, there was still doubt whether the element of intentional choking was satisfied. That version posited that he put his arm across her face. It could not just be any application of force that could sustain the element. The facts of the decision of GS showed that there needed to be a clearer connection to the consequence of a reduced airflow.

In written submissions prepared in advance of the hearing of the appeal (MFI 2), the Crown emphasised the Magistrate’s advantage in seeing and hearing the complainant’s evidence and referred to the Magistrate’s credit-based finding influenced by his observations of her demeanour. The Crown submitted that the complainant’s evidence of being assaulted (and choked) was supported by the photographic evidence and the appellant’s text message at 6:32pm. The Crown noted the Magistrate’s rejection of the appellant’s account as nonsensical and lacking in credibility. The Crown, in short, endorsed the correctness of the Magistrate’s directions and conclusions. These written submissions had been prepared without the Crown having the benefit of written submissions for the appellant.
At the hearing of the appeal, in his address, Mr Crown submitted that such inconsistencies in what the complainant said on a range of details associated with the incident she described were immaterial.
In particular, on the point about variations as to how she said the appellant choked her, she was consistent in her evidence that he had put his arm around her neck, that she struggled to release from him and that she felt hot in the face.
As to the fresh evidence, this did not impair her credibility or reliability. Two points were made. First, in terms of the telephone calls, although there was evidence of a call made by the appellant to the complainant at 5:44pm that ran for over 23 minutes, there was no direct evidence that they had a conversation. The evidence indicated that the appellant’s phone had rung a different mobile phone number at 6:12pm (a short 45 second call). Later, the complainant said in her evidence on appeal that she thought that she went outside into the garden at 6:18pm. There was adequate opportunity within these timeframes for the incident to have occurred as she had asserted and the appellant to compose his text message to her at 6:32pm.
Secondly, her evidence tying her leaving the home to go into the backyard with the sunset was not falsified by the expert evidence. The expert did not purport to suggest that there were sharp lines between the states of daylight, sunset and the dark. There was, in short, a spectrum of light before the sky became pitch black and the point was reached where the complainant was altogether incapable of seeing where she was going without moonlight or artificial light. It was not implausible that she was still able to see where she was going when she left the house to venture out into the backyard.
As to the appellant’s text message at 6:32pm, Mr Crown submitted that the Magistrate was right to place significant weight upon the apology contained therein. On the basis of all of the evidence, including but not limited to the appellant’s account, featuring a denial of any argument occurring as between himself and the complainant during the afternoon and evening, the Magistrate rightly inferred that there was no other rational inference consistent with his innocence for him to make it.
As to the photograph, Mr Crown accepted that there was no photograph depicting a mark on the complainant’s neck per se. Nevertheless, the photograph, indicating the markings around her shoulder (surviving into the day following the incident) still supported the complainant’s account of her feeling the appellant’s elbow, which itself provided some support for her evidence about his assaulting her in the way that she complained about.
As to the point raised about the delay in complaint, the circumstance that her complaint about the incident was only incidentally brought up as part of a report designed to bring police protection to her did not work against the complainant. Although it indicated a reluctance on her part, she was not trying to damage the appellant. That she subsequently provided further details to police should not be viewed as an attempt by her to embellish her account.
In this context, the point that the appellant raised about the neighbour was of little weight. It could be inferred that the latter was a reluctant witness.
Mr Crown concluded by saying that I was in a comparable position to the Local Court Magistrate, of seeing the complainant in the body worn footage and also her DVEC. He argued that I should reach the same positive impressions of her demeanour as the learned Magistrate had. She was responsive to the questions asked of her. She did not embellish and she appeared genuinely upset when describing the incident featuring the asserted choking.

I acknowledge that I have had the advantage of hearing and seeing the complainant in the Body worn evidence (12 December 2024), her DVEC (18 December 2024) and when she gave evidence at the hearing on the appeal in response to the fresh evidence that the appellant adduced. I did not hear and see her when she otherwise gave evidence in the Local Court. I never saw the appellant give evidence at all. I accept Counsel for the appellant’s submission that the conventional recognition in appeals of this kind to the advantages enjoyed by the Magistrate do not apply in all of their usual force in the circumstances.
The appellant elected to give evidence in the Local Court. He gave an account diametrically opposed to the complainant’s account in material respects. No attempt was made by his Counsel to challenge the adverse credibility findings that the Magistrate made against the appellant. Nor was it suggested that his Honour misapplied the Liberato direction he gave himself. Specifically, it was not suggested that his Honour was wrong either in wholly rejecting the appellant’s account or disbelieving that it might be true.
This forensic posture underscored the narrowness of the appellant’s position in this appeal. The ultimate question for me is to determine for myself whether the facts established that the appellant intentionally choked the complainant. The Crown does not have to persuade me of each and every disputed fact beyond reasonable doubt. It needs to persuade me beyond reasonable doubt that the appellant intentionally choked the complainant. Critical to that determination is whether, having carefully scrutinised her evidence, I can repose sufficient confidence in her complaint as to accept that it was both credible and reliable in material respects.
The appellant’s Counsel correctly points out that the complainant gave different accounts of the event, or different aspects of the details of the event, at different times to different people.
In this case, the first time that the complainant complained or reported to anyone about the incident was on 12 December 2024, over 15 months since the date of the incident.
As trial judges are accustomed to instructing juries, it is not only the case that they may accept some things that a witness says but not others, it is a rare witness who gives the same account on all the details of an event, especially peripheral details, rather than the core features of an event, on multiple occasions.
On one view, the complainant placed herself at a natural disadvantage by her delay in her reporting. Plainly, contemporaneous reports or complaints are admissible as additional evidence to support the facts asserted in the complaint as well as being relevant (indeed generally bolstering) to the assessment of a complainant’s credibility.
I will return later to what the absence of contemporaneous complaint might say about her credibility. But experience suggests that when giving accounts of an incident what has occurred many months or even more than a year before, which to the witness has occasioned a level of trauma, a witness is more likely to remember the salient details of an event than features which to them were more peripheral. There is bound to be some aspect of reconstruction. Judicial officers are usually aware of the fallibility or frailty of human recollection and may be more on guard when a witness has an emotional or other stake in the telling of an account. As judges also often tell juries, memories about events can be sincerely held yet unreliable. This was famously recognised in observations by Leggitt J in Gestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) at [15]-[17], which have often been approvingly cited in Australian Courts.
With these general observations in mind, differences in what the complainant said about the circumstances of the appellant going to the hospital and a number of the other criticisms that the appellant’s Counsel raised of her evidence, such as what she wore when she fled the house and how long she remained in the bathroom upon her return to the housestruck me as being peripheral.
Of greater force is the appellant’s attack focussing upon the complainant’s accounts of the incident in question. However, even there, some allowance should be made for the complainant. This proceeding is not directly affected by the legislative provision of s 293A of the Criminal Procedure Act, which in terms is confined to trials for prescribed sexual offences. Nevertheless, I think it is unrealistic to suppose that in the context of an allegation of a singular episode of choking between domestic partners, the complainant would not similarly be in the throes of experiencing an unexpectedly traumatic episode featuring the alleged perpetration of a serious physical assault within a short period of time; such that trauma can effect a complainant’s recollection of the episode, and experience also shows that people may not remember all the details of a domestic violence offence in the same way every time.
Although there were variations in her description of what occurred, there was, to my mind, consistent accounts from the complainant that her face became red-hot, that she was thrashing her arms and legs in resistance, that she could not breathe for a time and that her body went limp. There was, to be sure, some variation, which the learned Magistrate discerned, as to whether she blacked out or was only seconds away from blacking out. It was, to my mind, significant that in the first account that she gave of the incident on 12 December 2024, she said she did black out. That was also her position in the Local Court hearing. I will return later to the question of whether all of this made out the critical element after considering other points raised by the appellant. My point, for present purposes, is that I do not accept that such differences as emerged in the complainant’s accounts on what occurred in the incident and what effect it had on her were such as to my mind substantially impair my assessment of her credibility and reliability.
The fresh evidence does not shift the dial in a context where, according to the appellant’s version himself, he had also arrived home at 5:45pm, along with the complainant. It may be accepted that he rang her phone at that time with such call terminating around 6:08pm, but there was no evidence from the complainant or the appellant as to any conversation between them or, if there was, what the content of that conversation was. Contrary to the appellant’s submission, on the premise that there was any conversation, in the circumstances I am not prepared to speculate what its content was. Just as it may be strange for the complainant not to recall what was said (assuming she answered the call) in light of his evidence that he was at her home at the time, equally it may be said it was strange that he would call her.
Nor does the expert’s evidence really throw doubt on the somewhat peripheral issue of when the complainant fled the house to go outside. The point that the complainant was making when she referred to the ‘sunset’ was to stress that it was not so dark that, without the benefit of moonlight or artificial light, she was unable to see where she was going. There was no evidence, expert or otherwise, to suggest that, unaided in these ways, it was impossible for her to have seen where she was going when she vacated the house.
Further, in relation to her contentious evidence that she fled the home after being released to go outside, the complainant’s evidence to police, given on 12 December and 18 December 2024 of instances of his abuse or intimidation of her arguably provided context evidence to support that particular aspect of her evidence. Alternatively, it was evidence that could be used as a prior consistent statement to bolster her credit in the face of the challenge in the Local Court.
Like the learned Magistrate, I was also impressed by the content of the text message, featuring an apology, sent by the appellant at 6:32pm. It was strongly probative and supportive of complainant’s account that he had let his anger with her get the better of him in the circumstances. Towards the end of the message, he wrote as if he was acknowledging that a serious event had occurred and effectively acknowledged the end of the relationship.
The hearsay evidence concerning the neighbour’s report of what the appellant said scarcely goes anywhere in circumstances where the neighbour was unwilling to assist police. It is not apparent whether the police officer had, or even could, effectively interrogate the neighbour as to that person’s dealings with the appellant. It provided no basis for any contention that the complainant lied to police about the report she said she received from that neighbour.
The criticism of delay is not to my mind of real weight either. Sometimes delay can be influential but it depends on the circumstances. Certainly there was a reluctance to complain, but in August 2023, she was pregnant with the appellant’s child. Moreover, it may amount to an outmoded stereotype or trope that victims of physical domestic abuse may be expected to instantly complain, pack up their belongings and leave a domestic relationship. There was an obvious reason for why, in the face of the incident, she wanted to continue to make the relationship work, being her pregnancy. There was also her apparent economic dependence upon the appellant.
There is some force to the point raised about the complainant going about compiling evidence in dribs and drabs after December 2024 in a context of a domestic dispute in which family law proceedings had either been instituted or may have been in contemplation - the evidence being unclear about this. I do not place much weight on that. The probative value of the photograph of 7 August 2023 or the appellant’s text messages at 6:32pm on the day in question was not diminished by the circumstance that at the time of their discovery, or discoveries, family law proceedings were in train or in contemplation. What struck me, which was especially pertinent to the associated submission in the Local Court that the complainant was motivated to lie, was that when she did complain about the incident, this was incidental to her seeking police protection on 12 December 2024. She was not trying to get the appellant into trouble; which she easily could have done. I do not infer that she engaged in some Machiavellian restraint in holding back until the appropriate question was asked of her by the police officer. Her reference to the incident, naturally slipped out, as it were, in answer at a moment where her preoccupation was simply to protect herself.
As Mr Crown correctly pointed out, and to repeat, I was in the fortuitous position of being able to observe the complainant when she reported to police on 12 December 2024 and when she gave her DVEC on 18 December 2024. I agree with Mr Crown’s submissions about her demeanour. She was calmly responsive to what she was asked, particularly in the DVEC – she was naturally more agitated on 12 December – in circumstances that by the time of the DVEC, she had procured an enforceable ADVO to protect her. She did not embellish and the indications of her upset occurred at the point when she discussed the incident did not strike me as being feigned. In referring as I do to a witness’ demeanour, I am not suggesting that this is the most important consideration when evaluating a witness’ credibility or reliability.
The other matters raised about the diary and the photograph of the bruising were not reasons to question her credibility either. That she might have written more in her diary note, or that it was possible that she may have sustained other bodily injuries do not alter my view of her. Had those things occurred, it would only have made the appellant’s forensic position worse than it already appeared.
In short, I accept that the complainant was both credible and reliable.
This then brings me to the final point raised on the appellant’s behalf, touched upon earlier. This was that on a certain version of what the complainant said that the appellant did, it was not enough to prove beyond reasonable doubt that he intentionally choked her.
I find that it is more probable than not that the complainant did black out, that her face went red hot, that she struggled to breathe and felt her body go limp until the appellant released his arm. These are manifest signs of the appellant intentionally applying force to her neck. I find beyond reasonable doubt that not only did his application of such force on her neck was capable of affecting her breath, and/or the flow of blood to or from her head, but that it probably did carry that consequence.
The appellant’s appeal against the choking offence is dismissed. His conviction of that offence is confirmed.