Truman (a pseudonym) v Chapman [2025] ACTSC 340

Jurisdiction and legal principles on appeal

8. I accept that the principles to be applied, in an appeal of this nature, are accurately described in the prosecution’s written submissions dated 16 July 2025 at [5] to [7].

Factual background

9. It is convenient to set out the four charges against the appellant.

10. The appellant was charged with the following: 1. CC2022/12060: that he, in the Australian Capital Territory, on 13 November, 2022, did assault [the complainant] and the offence involved family violence. 2. CC2022/12061: that he, in the Australian Capital Territory, on 13 November, 2022, did assault [the complainant] and the offence involved family violence. 3. CC2022/12062: that he, in the Australian Capital Territory, on 13 November, 2022, did assault [the child] and the offence involved family violence. 4. CC2022/12063: that he, in the Australian Capital Territory, on 13 November, 2022, intentionally and unlawfully, choked, suffocated or strangled another person, namely, [the complainant] and the offence involved family violence.

11. Each of these charges arose out of an episode which occurred at the home of the appellant and the complainant on the night of 13 November 2022.

12. The appellant is married to the complainant. They have one child who is the victim in respect of the charge CC2022/12062. The conviction of the appellant on this count is not challenged.

13. The remaining three counts all arose out of an episode which occurred after the complainant went to the bathroom to prepare a bath for the child at about 5:00pm on Sunday, 13 November 2022.

14. In the Magistrate’s unpublished reasons, the Magistrate summarised what occurred thereafter in [9] to [17]: 9. The task of bathing the child fell to the defendant. After a short time the defendant left the bathroom and joined his wife in the kitchen where they had a brief argument about whether the child had been washed. This resulted in the complainant becoming upset. 10. After this argument the defendant went back in the bathroom. The complainant heard a hard slapping sound and immediately proceeded to the bathroom where the child told her that the defendant had slapped her on the face. 11. The complainant observed some redness on the child’s face and this gives rise to charge 12062 of 2022. 12. The complainant then started yelling at the defendant to get out of the bathroom and The defendant stated “she’s wiped a booger on me!” The argument between the two adults then escalated and became physical. 13. The defendant told the complainant to “fuck off” and started pushing her on the chest. It is this conduct that is said to give rise to charge 12060 of 2022. 14. Thereafter the parties were pushing each other for about 22 seconds back and forth. the complainant grabbed and broke the defendant’s chain necklace. The defendant then pushed the complainant onto the bed in the bedroom adjacent to the bathroom. 15. The defendant then climbed on top of the complainant and applied pressure to her neck with one or two hands. The complainant couldn’t breathe during that incident. She felt that that her face was hot at the time and she thought she was going to die. She thought that her neck was held for more than five seconds. This conduct gives rise to charge 12063 of 2022. 16. While the defendant was choking the complainant she was kicking his lower body. The child was also in the room at this point yelling at the defendant to stop and she was pushing or striking him. 17. The defendant then let go and stepped back. The complainant got up off the bed and attempted to comfort the child. As she stood up the defendant pushed her, causing her to fall against the bed and then onto the ground hitting head on the wall. This conduct gives rise to charge 12061 of 2022.

15. The version of events which the prosecution relied on at trial was the account given by the complainant in a 000 call to the police on 13th of November 2022, the account she gave to the police officer same day when the police attended the home and the Family Violence Evidence in Chief interview (FVEIC) with the complainant on Tuesday, 15 November 2022.

16. The evidence of the child in an interview with police on 7 December 2022 was also admitted over objection by the appellant.

17. At the trial the complainant gave evidence which was completely at odds with what she had said in the FVEIC. The Magistrate then gave leave to the prosecution to cross-examine her.

18. During the course of her evidence in chief, the complainant had viewed the FVEIC which she provided to the police as it was played in Court. Essentially her evidence at the trial was that she had lied to police when she called 000 and on both occasions that she spoke to them. She said she had been pressured by police to involve the child in the proceedings. She also stated that she told the child not to tell police what “mummy” had done to “daddy”.

19. In her oral evidence at trial, the complainant said that they had been having issues in their marriage and had been fighting constantly including on that day. The child had a bath, but the complainant said that what she had said in her FVEIC that she had heard a slap from the kitchen was untrue. She said she heard the child cry because they were arguing and the child was being difficult and did not want to get out of the bath.

20. The complainant said that she went into the bathroom and the child told her that her father had slapped her face. She then had a conversation with him about the child wiping a “booger” on the appellant. She repeated that she did not hear slap, the child did not have a red mark on her face and the child was really carrying on. She said she became angry at the appellant because the child was upset and she did not know why the child was upset.

21. She then said she started screaming at the appellant and he would not leave the bathroom so she started hitting him with a closed fist, and they started grabbing at each other and pulling each other’s collar. His necklace broke as he was pushing her. They made it to the nearby bedroom and she started kicking him. She said “like laying into him”. She fell onto the bed in the spare room and she kept trying to kick him and hit him and he was just “pushing me away pushing me away”. He came to be on top of her, and his hand was on her chest. She described this occurred because the appellant had lost his balance. She also acknowledged that the child had been in the room for some of that time. However, she specifically denied that the appellant had ever choked her.

22. The complainant said that what when she had calmed down, she was not sure what to do and was still very angry. She thought she would call the police and say that he had assaulted her and then he would have to get out of the house. She then said that she thought she would call the police and tell them that he was choking her because she just wanted him to fight back but he would not. She then called her mother who encouraged her to call the police and also suggested that she call the appellant’s parents. She did that.

23. After the appellant’s family arrived, the complainant told the appellant’s family that they had had an argument and that the appellant had been choking her and the appellant then started laughing, which enraged her and prompted her to call the police.

24. The evidence of the child was admitted into evidence and the child was briefly cross-examined as to what she told the police in her FVEIC. The defence counsel suggested to her that she only told them what her mother had told her to say, a suggestion with which the child agreed. As the Magistrate noted in his reasons, that suggestion was inconsistent with the mother’s evidence on that particular topic. In any event, the child was re-examined and confirmed that what she had told the police was everything she could remember.

25. In evidence, the police officer said that the complainant appeared upset when she arrived at the home and she took her into a separate room. The complainant told her that she and the appellant had engaged in a brief push and shove, the accused then pushed her backwards into a room where she fell on the bed. He placed a hand on her throat to stop her from getting up, restricting her ability to breathe for a few seconds. She panicked and began kicking the appellant to get him off. She said she wanted the appellant out of the house. She also said she did not want to make a statement.

26. The appellant did not give evidence at trial. He relied on the version of events which he gave to the police on the night of 13 November. She liked grabbed me and starts punching me, I don’t let her punch me, I say ‘get off, stop it’ She grabs me by my shirt, had this chain which is broken, she started it, won’t let go, pushing her off. She dragged me onto the bed in the room down there. Pushing her off, my hand was like here, she was like you’re choking me, she said let me go, using her knees kicking me, pretty sure I have a bruise, kicking me. That was that. Just walked off, you started it. Who put their hands on the other person first? I said you did it, you put your hands on me. You put your hands on me, you were hitting me. She wouldn’t let go, was grabbing me with both hands and using her legs and all that. She dragged me, I fell on top of her. Grounds of appeal

27. I turn now to consider the grounds of appeal. The first ground is a complaint that the prosecution failed to negate that the appellant acted in self-defence. The appellant contended that on any view of the evidence, self-defence was a central issue in the hearing, including in relation to the choking charge.

28. For the reasons which follow, I consider that submission is too broadly made. It needs to be borne in mind that there were four charges before the Magistrate. Although self-defence was squarely in issue in relation to the second charge as it related to the pushing and punching allegation prior to the choking, the allegation of choking was denied outright by the appellant in his interview with the police. In his interview, the appellant said that he pushed her away as she was attacking him, demonstrating with his hand that he pushed her on the neck and that this was the point at which she told him that he was choking her.

29. That allegation was in direct contrast to how the prosecution had particularised the choking allegation in particular that on the appellant’s account, pushing her by the neck would not have taken seven seconds nor caused her face to become red or her breathing become restricted. The particulars relied on by the prosecution based on the complainant’s FVEIC included that the appellant wrapped at least one hand around her neck and applied pressure for longer than five seconds, causing the complainant to find it difficult to breathe, made her face feel hot and that she felt as though she might die.

30. The Magistrate properly considered the issue of self-defence in relation to the second count. He found that on both the complainant’s account of the push to the chest to get her out of the bathroom and the appellant’s account in his interview, the issue of self-defence fairly and squarely arose on the evidence in relation to that incident. He dismissed that charge on the basis that he could not be satisfied that the appellant’s actions in respect of that particular incident were not done in self-defence.

31. The issue which arose on the charge of choking was ultimately a factual one, whether the Magistrate accepted the truth of the complainant’s evidence in the FVEIC, namely that the accused was standing over her and holding her neck for about seven seconds or whether there was a reasonable possibility, that appellant’s account that he was pushing the complainant away by pushing on the neck could be true.

32. If the Special Magistrate had considered that what the appellant said about that to be true or possibly true, then an acquittal would inevitably have followed because the prosecution would have failed to prove beyond reasonable doubt that it was a deliberate, intentional and unlawful choking of the complainant.

33. In light of the Magistrate’s findings on the facts that “while the choking occurred in the middle of a violent disturbance between the parties, on the evidence in the FVEIC, the complainant was lying on the bed with the appellant over her and holding her neck for approximately seven seconds”, he then correctly to my mind, observed that on these facts, the issue of self-defence did not arise.

34. As to the complaint made in the same context that the Magistrate did not properly apply the principle in Liberato v The Queen [1985] HCA 66; 159 CLR 507, I consider it plain from the Magistrate’s reasons as a whole, that in finding the allegation of choking as alleged in the FVEIC proved beyond reasonable doubt, the Magistrate rejected the appellant’s account beyond reasonable doubt.

35. The Magistrate considered the entirety of the appellant’s version in the paragraphs preceding the comments he made at [65] when he said that the police interview “is more inculpatory, than exculpatory. In relation to the important factual contests, it supports the version given by his wife in the FVEIC”.

36. It needs to be borne in mind that at that stage of the proceedings, the Magistrate was still considering four separate charges. However, in the context of discussing the choking charge specifically, the Magistrate made it clear that he accepted the version of events in the complainant’s FVEIC. That finding necessarily means that he rejected the appellant’s account as the appellant had denied the central allegation of choking and his account was markedly different to the complainant’s.

37. In other words, acceptance of the prosecution case on the choking charge necessarily required a rejection of the appellant’s account.

38. I consider that this finding was open to the Magistrate. Therefore, this ground of appeal is not made out.

39. I turn now to the complaint that the Magistrate erred in rejecting the complainant’s in-court evidence without cogent reasons showing a chain of logical reasoning justifying that conclusion.

40. The appellant complained that the bases given by the Magistrate for rejecting the complainant’s in-court evidence were illogical and flawed. He was wrong to rely on the complainant at the hospital, in relying on the fact that both the complainant and the appellant had security clearances which would be adversely affected by any conviction, and he was wrong to rely on the child’s evidence in chief in support of the complainant’s FVEIC.

41. I make it clear at this point that I have read the transcript of evidence at trial, and I have both viewed and read all of the exhibits tendered including Exhibit P2 (FVEIC), P3 (the 000 call), P6 (the body worn camera footage) and P7 (the child’s evidence in chief) together with the transcript provided. Having done so, I consider that it was open to the Magistrate to accept the account given by the complainant in the FVEIC and to reject her in-court evidence. For a start, the complainant’s evidence in Court was in conflict with a number of other critical and important aspects of the prosecution case.

42. It was inconsistent with her 000 call to the police immediately after the incident. It was inconsistent with her complaint to the police on the night and the evidence of the child and the complainant’s own account in the electronically recorded interviews.

43. The in-court evidence of the complainant was, indeed as the prosecution has submitted, unconvincing and riddled with inconsistencies.

44. Her demeanour and the account which she gave on the night and two days later in the FVEIC is completely at odds with her evidence in Court that she never heard the slap.

45. In fact, despite saying she did not hear the slap, she then said that she went to the bathroom, she was angry because she thought the child may have been slapped. Her evidence in Court on that topic is inherently improbable, as was her evidence about how she came to call the police and her evidence about being annoyed with the appellant when he laughed.

46. She said in evidence, “I thought it’s over, and I knew he knew. He’s laughing it off and he was telling them I was hitting him, which I knew was the truth”.

47. It was open to the Magistrate to rely on the complainant’s actions at the hospital when she proffered her neck to be viewed, as one of the reasons for rejecting her in-court evidence. He found that it was completely inconsistent with her evidence that she knew all along she was lying and she knew there were no marks on her neck.

48. In these circumstances I consider the Magistrate was entirely justified to draw the inference that he did as the actions of the complainant at the hospital were in fact entirely inconsistent with the person making up a story about being choked knowing that it had not occurred.

49. I have reviewed the transcript and the audio visual recording of the child’s electronic interview. Her evidence about the choking was compelling. Even on the complainant’s own account to the police, the room where the choking happened was not that big. The child’s account of her father standing over the mother while she was on the bed is not therefore inherently implausible or illogical. The child gave no more detailed evidence about the exact circumstances nor was she cross-examined about that. In these circumstances, it was open to the Magistrate to accept the child’s evidence.

50. I observe at this stage, having read the cross-examination of the child, that I can well understand the Magistrate’s comment that at one stage the child appeared confused. This was a child who has been cross-examined about things she had said 18 months earlier.

51. In summary, I consider the Magistrate’s reasons for rejecting the complainant’s evidence, far from being illogical or in error were plainly open to him. This ground of appeal is not made out.

52. I turn now to the next ground of appeal, which is a complaint that the verdicts are inconsistent.

53. This ground of appeal can be dealt with briefly. In respect of the first common assault upon the complainant, on the complainant’s own evidence she was pushing and pulling the appellant. As the Magistrate correctly observed in those circumstances the assault may not have been unlawful and given the complainant’s role in that episode, self-defence was plainly an issue for him to consider. There is nothing illogical about that conclusion.

54. In relation to the second assault, the Magistrate determined that the sparse details given about the final episode when she was pushed onto the floor that he was left unable to make a positive finding relating to that charge. The allegations in respect of this charge were significantly different to the allegations in support of the choking.

55. There were logical reasons for the acquittal on the two other common assault counts which have no bearing at all on the choking offence. I consider that this complaint is without substance.

56. I turn now to the final grounds of appeal, that the verdict is unreasonable. I acknowledge that the test for an appellate court in determining whether a verdict is unreasonable is to consider whether on the whole of the evidence it was open to the tribunal of fact to be satisfied beyond reasonable doubt of the appellant’s guilt.

57. I have already made it clear that in considering the grounds of appeal, I have reviewed the whole of the evidence and in particular have viewed all of the exhibits. The complainant was plainly distressed on the night and two days later when the FVEIC was recorded.

58. There was compelling evidence to support the complainant’s account in the FVEIC, including the 000 call, her attendance at the hospital where some red marks on her neck were identified and the evidence of the child who demonstrated quite clearly that she had witnessed a choking action.

59. Notwithstanding the complainant’s recanting at trial, there was ample evidence to corroborate the account which she gave in the FVEIC. In these circumstances, it was open to the Magistrate on the whole of the evidence to be satisfied of the appellant’s guilt.

Order

60. For these reasons, the appeal is dismissed. I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Kelly. Associate: Date: 1 August 2025