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  • Unreported Judgment

R v RT (No. 2)

 

[2020] QDC 158

DISTRICT COURT OF QUEENSLAND

CITATION:

R v RT (No. 2) [2020] QDC 158

PARTIES:

THE QUEEN

v

RT

(defendant)

FILE NO/S:

208/19

DIVISION:

Crime

PROCEEDING:

Trial

DELIVERED ON:

13 July 2020

DELIVERED AT:

Maroochydore

HEARING DATE:

6 July 2020; 7 July 2020

JUDGE:

Cash QC DCJ

VERDICT:

NOT GUILTY

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – TRIAL HAD BEFORE JUDGE WITHOUT JURY – where defendant charged with one count of choking in a domestic setting – whether defendant “choked” the complainant – whether the evidence of the complainant can be accepted beyond reasonable doubt

Criminal Code 1899 (Qld), s 615B, s 615C

Evidence Act 1977 (Qld), s 21A

De Silva v The Queen [2019] HCA 48

Liberato v The Queen (1985) 159 CLR 507

R v DAH (2004) 150 A Crim R 14

R v HBZ [2020] QCA 73

R v RT [2020] QDCPR 30
Woolmington v The Director of Public Prosecutions [1935] UKHL 1

COUNSEL:

A Q Stark for the prosecution
S A Lynch for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the prosecution
Smith Criminal Law for the defendant

REASONS FOR DECISION

Introduction

  1. [1]
    The defendant, [RT], was charged on indictment that on the seventeenth day of December, 2017 he unlawfully choked [RL] without her consent and while he and [RL] were in a domestic relationship. On 17 April 2020 I ordered that the defendant be tried by a judge sitting without a jury.[1] The trial commenced before me on 6 July 2020. The defendant entered a plea of “not guilty” and the trial proceeded.
  1. [2]
    Having considered the evidence and the relevant law I am not persuaded beyond reasonable doubt that the defendant is guilty. What follows are my reasons for reaching this conclusion.

Preliminary matters

  1. [3]
    Trial by judge alone is permitted in Queensland pursuant to Part 8, Chapter 62, Chapter Division 9A of the Criminal Code (Qld). The relevant provisions governing the conduct of a trial by judge alone are set out below.

615B  Law and procedure to be applied

  1. (1)
    In a trial by a judge sitting without a jury, the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury.
  1. (2)
    In a trial by a judge sitting without a jury, the judge may view a place or thing.
  1. (3)
    If an Act or the common law—
  1. (a)
    requires information or a warning or instruction to be given to the jury in particular circumstances; or
  1. (b)
    prohibits a warning from being given to a jury in particular circumstances;

the judge in a trial by a judge sitting without a jury must take the requirement or prohibition into account if the circumstances arise in the course of the trial.

615C  Judge’s verdict and judgment

  1. (1)
    In a trial by a judge sitting without a jury—
  1. (a)
    the judge may make any findings and give any verdict that a jury could have made or given if the trial had been before a jury; and
  1. (b)
    any finding or verdict of the judge has, for all purposes, the same effect as a finding or verdict of a jury.
  1. (2)
    Without limiting subsection (1), chapter 67 applies with all necessary changes in relation to a person to be tried, being tried, or tried by a judge sitting without a jury in the same way as it applies to persons tried by a judge sitting with a jury.
  1. (3)
    The judgment of the judge in a trial by a judge sitting without a jury must include the principles of law that he or she has applied and the findings of fact on which he or she has relied.
  1. (4)
    The validity of the proceeding is not affected by a trial judge’s failure to comply with subsection (3).”
  1. [4]
    It is a fundamental principle of our law that a defendant in a criminal trial is presumed to be innocent.[2] The onus is on the prosecution to prove the guilt of the defendant, if it can, beyond reasonable doubt. In order to do so, the prosecution must prove every element of the offence alleged. The defendant had no obligation to prove any matter in the trial, least of all his innocence.
  1. [5]
    To prove the alleged offence it was necessary for the prosecution to prove the following matters:
  1. The defendant choked/suffocated/strangled the complainant; and
  1. The choking was not justified, authorised or excused by law; and
  1. The complainant did not consent to the choking; and
  1. The defendant and the complainant were in a “domestic relationship” as that term is defined in the Domestic and Family Violence Protections Act 2012 (Qld).
  1. [6]
    In this context to choke someone means to do an act that hinders or restricts the breathing of the complainant. It is not necessary for the prosecution to prove that the complainant’s breathing was completely stopped. It is sufficient to prove that there was a restriction of breathing, even if only for a short time and without any lasting injury.[3] It was not in dispute that the defendant and complainant were in a domestic relationship. There was no suggestion that, if the act complained of occurred, the complainant had consented or that there was some arguable justification, authorisation or excuse. The real dispute at the trial was whether the act of choking described by the complainant took place. There were no other persons said to be present when the alleged offence occurred. As a consequence, the evidence of the complainant was critical to proof of the offence. It was accepted by both prosecution and the defendant that the defendant could only be convicted if I was satisfied beyond reasonable doubt that the evidence of the complainant about the essential allegations was truthful and accurate.

The evidence

  1. [7]
    The prosecution called five witnesses. First was the complainant who was named in the indictment by her married name of [RL] but who had by the time she testified returned to using her former name of [GL].[4] The complainant gave evidence from a remote witness room using an audio-visual link. Her mother was permitted to be in the room with the complainant to provide emotional support. I made orders at the start of the trial allowing these measures to be adopted pursuant to section 21A of the Evidence Act 1977 (Qld). I am conscious of the instructions required by section 21A(8) to be given to a jury in cases where such measures are used. In assessing the complainant’s evidence I have applied the statutory admonition to avoid drawing any inference about the guilt of the defendant, or regarding the probative value of her evidence as being increased or decreased, or giving the evidence greater or lesser weight because of the order I made.
  1. [8]
    As well the prosecution called Dr Peter De Wett, a general practitioner who saw the complainant three times after the alleged offence; Dr Leslie Griffiths, a Forensic Medical Officer,[5] who gave some expert opinion evidence and the two police officers who attended the house at Glenview soon after the incident occurred. The evidence of the witnesses is summarised below.

The complainant’s evidence

  1. [9]
    The complainant was in a relationship with the defendant for some 19 years of which they had been married for 16. They did not have children together, but each had a children from earlier relationships. These children were all adults by the time of the events the subject of the alleged offence. The complainant’s children are Brad, Andrew and Tiarna. The defendant has a son called Dylan and another child whose name was not mentioned in evidence. The complainant and defendant separated after the events of December 2017 and were divorced last year. In December 2017 they lived in a house at Glenview where they had resided for many years. The defendant owned and operated a business. Until 2015 the complainant did bookkeeping and other paperwork for the business. This was her only source of income. By September 2014 the relationship was strained. There was discussion of separation but the complainant and defendant remained living in the same house. Between then and January 2015 the defendant effectively shut the complainant out of the business and took control of financial matters.
  1. [10]
    In October 2014 an incident occurred. The complainant had been out and returned to discover the defendant looking through information on her tablet computer. After the defendant was confronted about this he left for a walk. When he came back he took the complainant’s car key from her purse. They argued about the key and there was a struggle as the complainant tried to snatch the key back from where it was clipped to a belt loop on the defendant’s pants. The defendant grabbed and twisted the complainant’s thumb and wrist. The complainant attempted to knee the defendant in the groin, freeing herself in the process. The defendant locked himself in the bedroom. She kicked the bedroom door, causing a hole, and the defendant came out and gave her the car key. The complainant left the house for a time.
  1. [11]
    On 3 January 2015 the complainant and defendant were at home with some of the children. The complainant’s son Brad was there with his girlfriend as well as the defendant’s son Dylan. The complainant’s daughter Tiarna arrived later with her partner, Jake. The complainant was not aware Dylan would be at the house for dinner. There was a shortage of food. This resulted in an argument where the defendant alleged the complainant deliberately did not prepare enough food for Dylan. It seems various arguments continued for some time before the complainant asked the defendant and Dylan to leave. As they walked toward the front of the house the complainant followed. After passing through a gate the defendant swung it back so that it struck the complainant. The complainant pushed the gate back and it hit the defendant. The defendant screamed and put both his hands around the complainant’s throat, pinning her to the fence. He used a lot of force on her neck such that the complainant could not breathe and felt dizzy. After about ten seconds Jake approached and yelled at the defendant to “get off her”. The defendant held her for what felt like another ten to fifteen seconds then let the complainant go. She collapsed and tried to regain her breath. Jake helped the complainant as the defendant went inside the house. There followed argument outside between the children while the complainant and defendant spoke inside. The defendant spoke of being “caught” by Jake before he left with Dylan.
  1. [12]
    Police attended the house on 4 January 2017 and the complainant attempted to pursue a domestic violence protection order. She spoke to police at Caloundra, Beerwah and Maroochydore but none of the police to whom she spoke did anything. The complainant and defendant lived separately for about six months but reconciled in mid-2015. The defendant returned to house at Glenview and continued to control the couple’s finances. There was no physical violence from then until the alleged offence on December 2017.
  1. [13]
    On the afternoon of Sunday 17 December 2017 the complainant and defendant were at home. The defendant had been working in the shed at the property. The complainant had a glass of wine and when the defendant returned to the house gave him a beer and poured herself a second glass. They sat outside for a while and chatted. They had spoken before about moving to a smaller property at Aura.[6] The defendant was not interested in such a move. When the complainant raised the topic he became angry, refused to discuss the matter and went inside to shower. After showering the defendant went to the kitchen. The complainant went inside to help prepare dinner. She took salad out of the refrigerator. The defendant was angry. He retrieved some vinegar for the salad from the butler’s pantry. As he passed near the complaint he held the bottle in his fist and swung it toward the complainant’s face. The complainant pulled her head back to avoid being struck while simultaneously swiping a hand toward the defendant. The hand brushed the defendant’s face who screamed, “You hit me,” three times. He put the vinegar bottle away and was really angry when he returned to the kitchen.
  1. [14]
    The complainant turned to leave the kitchen. As she did so the defendant approached her from behind and took her left wrist with his left hand. He put his right forearm across her neck and applied pressure. The complainant was pinned against a bench. The complainant felt her airway was closing and said she could not breathe. The defendant responded that if she could not breathe she would not be able to talk and increased the pressure on her neck. This persisted for some ten to fifteen seconds and the complainant felt dizzy and light headed. He released her and the complainant leant on the bench trying to regain her breath. She asked the defendant why he did what he did and he replied that it was because he loved her. The complainant’s wrist was throbbing and she took an ice pack from the freezer. The defendant called the police and the complainant’s son Andrew. The complainant called her daughter. Both arrived before the police. When police arrived they spoke to the complainant in the patio area outside.
  1. [15]
    The next day the complainant went to court in relation to a protection order and then saw Dr De Wett at Caloundra. It was not until early February that she provided a written statement to police as she went interstate to see her grandmother who was unwell.
  1. [16]
    In cross-examination it was suggested to the complainant that she became angry when defendant called her son Andrew, threatening to smash the defendant’s telephone. The complainant denied this suggestion. She maintained that what she told police when they arrived at the house in December 2017 was similar to her account in evidence. She agreed that there was no mention of other domestic violence in the statement she provided in February 2018. Her explanation was that she considered them to be separate incidents and that she had been told by police that it was not relevant to the present allegation. There was cross-examination about some written notes the complainant had made concerning the alleged events of 2014 and 2015. The complainant said that Jake had spoken to police, “numerous times and offered to give a statement,” but had since broken up with the complainant’s daughter.
  1. [17]
    Some footage recorded by the police when they attended in December 2017 was played for the complainant to view.[7] It was suggested to the complainant that in her initial conversation with police she did not describe being choked by the defendant. The following exchange occurred:[8]

“Well, I’d suggest to you didn’t show that to the police at all?We did discuss it in further detail when she sat down and started writing notes.

Yeah, but not when you described it initially to her, did you?I’m sorry, if I was vague on details initially.

Do you agree that you didn’t describe that to her initially?Possibly.  I actually couldn’t hear the footage that was just played, so I was only able to judge it based on the visual.

Yeah.  You saw it, though, didn’t you?I did.

And you didn’t do any – show any gesture around your neck at all, did you?Not in what I’ve just seen, no.”

  1. [18]
    The complainant agreed she told Dr De Wett that she felt safe living in the same house as the defendant and did not take up his offer of refuge. When asked about disclosing the allegations of earlier violence she said she had raised this with the police on numerous occasions. The complainant said she told Senior Constable Sandon about the January 2015 incident no later than when she gave a written statement in February 2018. Jake had also offered to give a statement to Senior Constable Sandon about the incident.[9] It was put to the complainant that she was not choked by the defendant in either 2015 or 2017. She denied the suggestion.

Dr De Wett

  1. [19]
    Dr De Wett was a general practitioner at Caloundra when he saw the complainant on the afternoon of 18 December 2020. He noted that the complainant reported pain upon palpation of the left side of her neck, especially in the area of the sternocleidomastoid muscle. She also reported pain upon turning her head. Dr De Wett saw bruising to the complainant’s left wrist and she reported it was tender. He did not note seeing any swelling. Dr De Wett reviewed the complainant two days later. He described the complainant’s injuries as superficial soft tissue injuries. He was concerned there might be a fracture to a bone in the wrist so applied a plaster half-cast to the complainant’s wrist at the first consultation. This was removed two days later after an x-ray confirmed there was no fracture. The complainant saw Dr De Wett for a third time on 9 January 2018. She reported ongoing pain to her left wrist. A CT scan at that time did not show any injury to the internal structures of her neck.
  1. [20]
    Dr De Wett thought that the injuries he observed, and reported by the complainant, could have been caused in the manner alleged by the complainant. In cross-examination he agreed they could also be caused by other mechanisms. Dr De Wett agreed that at each consultation the complainant expressed that she felt safe staying in the same house as the defendant and on the first visit she declined an offer of refuge, saying she had children living nearby if she needed assistance.

Dr Leslie Griffiths

  1. [21]
    Dr Griffiths is a medical practitioner and Forensic Medical Officer of considerable experience. He expressed the opinion, based upon scientific literature and his own experience, that in about 50% of cases involving non-fatal strangulation there are no visible external injuries to the neck. In cases where there is observable injury it can be slight. Even in cases of fatal strangulation there is often no external signs of injury. Dr Griffiths thought the symptoms described by the complainant were consistent with pressure being applied to the neck causing a restriction of blood flow to the head. Pressure to the larynx may also create a sensation of being unable to breathe. In cross-examination Dr Griffiths agreed that quite a lot of pressure is required before the trachea would be blocked to the extent of stopping breathing.

Senior Constable Fiona Sandon

  1. [22]
    Constable Sandon attended the house at Glenview with Senior Constable Lowndes after receiving a report of a “domestic disturbance”. On arriving at the house she was met by the defendant and allowed into the house. The defendant stayed in the kitchen area and Constable Sandon went outside to the patio where she saw the complainant, the complainant’s daughter and her son-in-law. The complainant was seated at a table. She was quiet, subdued and composed and holding a cold pack to her left wrist. She did not appear to be affected by alcohol. After gathering information, Constable Sandon decided to commence an application for a domestic violence protection order. She spoke to the complainant four or five days later and again over the next couple of months. On 21 January 2018 the complainant came to Beerwah police station where she spoke about the events concerning the alleged offence. On 7 February 2018 the complainant came to the police station and provided a written statement.
  1. [23]
    In cross-examination Constable Sandon testified that it was not until May 2020 that she knew of any allegation of choking or other domestic violence prior to December 2017. When asked about conversations with the complainant on the night of 17 December 2017 Constable Sandon said she could not remember the complainant mentioned a past choking incident but said, “she may have on the night, but I can’t remember. It was very difficult to hear her, with a lot of – with the noise in the – on the patio. But I don’t know.”[10] She accepted there was no note of such an allegation. In further cross-examination the following exchange occurred:[11]

“Sorry, did you talk to her between the 17th of December and the 22nd of December?---No.

Okay.  On the 22nd of December she didn’t tell you of any past incidents, did she?---Not that I can recall.

Okay.  On the 21st of January, when you spoke with her the next year she didn’t tell you of any past incidents, did she?---No.  Not that I could remember.

Then she provided a statement on the 7th of February 2018?---Yes.

Again, in that statement, she didn’t tell you of any past incidents, did she?---No.

It came, then, to her talking to the Crown or to the Office of the Director of Public Prosecutions on the 22nd of May 2020?---Yes.

She then revealed that there’d been other incidents.  Is that right?---Yes.  That’s correct.”

  1. [24]
    Constable Sandon said she tried to contact Jake about the events of January 2015. She called and left messages, sent text messages and had other police go to his address.[12] Jake did not respond. She did not try to talk to Brad or Tiarna about this incident. She concluded her evidence saying she did not think she heard anything about other allegations of violence prior to May 2020.

Acting Sergeant Susan Lowndes

  1. [25]
    Sergeant Lowndes, then a Senior Constable, attended the house at Glenview with Senior Constable Sandon at about 8:00 pm. As she arrived she activated a body worn video camera and recorded her interactions with those present at the house. This included a conversation with the defendant which was tendered and played. She did not notice that anyone at the house appeared to be intoxicated. She did not see the complainant again after that night.

The conversation with the defendant

  1. [26]
    When the defendant spoke to Sergeant Lowndes he first explained there had been a disagreement against the background that he was unwilling to consider moving from Glenview to Aura. He was in the kitchen with the complainant who was badgering him about the topic. The defendant walked close and fast past the complainant to return the vinegar bottle to the pantry. He thought the complainant must have perceived he was going to strike her and she punched him to the face. The defendant said that he put the vinegar in the pantry and continued to cook dinner. He said the complainant wanted him to “give her space” so he took his dinner into the bedroom, ate there and called the complainant’s son Andrew so that there was someone else in the house.
  1. [27]
    There was a break in the recording as Sergeant Lowndes appeared to go outside to talk to the complainant. When she returned she said to the defendant that the complainant had said he grabbed her as he was coming out of the pantry. He responded:

“Uh, sorry, yes. You’re right. I did grab my arms around her and say stop, I’m like, stop, stop, thrashing, stop slapping, stop hitting.”

  1. [28]
    He went on to say that after he was punched, he grabbed the complainant and put his arms around her. She complained that she could not breathe and he said that was not right as he was not holding her in such a manner. He described facing her as he hugged her shoulders before grabbing her by the arms. He let her go when she said she could not breathe, even though he was only holding her by her arms. The complainant asked the defendant to leave and was upset that he had called Andrew, requesting that the defendant “call him off”.
  1. [29]
    Sergeant Lowndes had been taking notes as she spoke to the defendant. At the end of the recording she read them back to him. Her summary of the conversation was that they had argued about land at Aura, the defendant went to put the vinegar away and passed the complainant too close and too fast. She hit him on the left side of his face. He put the vinegar away and when he came out thought the complainant was going to hit him again. He grabbed her by the shoulders and told her to settle down. She struggled a bit and he grabbed her arms and told her to stop it. The complainant said she could not breathe and the defendant let her go. The complainant told him to leave. He said he would not and called Andrew and the police. The defendant signed the officer’s notebook to acknowledge that he accepted this summary of the conversation.

Principles of law to be applied

  1. [30]
    As I have already noted, the onus is on the prosecution to prove, beyond reasonable doubt, each element of the alleged offence. The evidence of the witnesses might be accepted in whole or in part, but I could not be satisfied the prosecution have proven the necessary elements of the alleged offence unless I am satisfied, beyond reasonable doubt, that the complainant’s description of the defendant applying pressure to her neck with his forearm is truthful and accurate. The defendant did not give evidence. I draw no adverse inference from this and note that the onus of proof remains with the prosecution. The defendant is presumed to be innocent until the prosecution adduces sufficient evidence to permit a conclusion of guilt beyond reasonable doubt. That he did not give evidence does not strengthen the prosecution case or supply additional proof against a defendant or fill gaps in the evidence.[13]
  1. [31]
    The defendant did provide a version to the police who attended the house in December 2017. It is not the case that I would only have a reasonable doubt about the evidence of the complainant if I believed what the defendant said, or that mere preference for the evidence of the complainant over the account of the defendant would be sufficient for a finding of guilt.[14] It is not a matter of choosing between the versions of the complainant and defendant but a question of whether, having regard to all the evidence, including the defendant’s conversation with police, I am satisfied beyond reasonable doubt that the complainant’s evidence was truthful and accurate. A transcript of defendant’s conversation with police was marked for identification. It provided some assistance when listening to and watching the recording, but the transcript is not evidence. I have based my decision upon my own viewing of the recording in the court room.
  1. [32]
    It was not suggested the complainant had a reason to make a false complaint. This is not something that provides support to the prosecution case. A failure or inability on the part of the defendant to prove a motive to lie does not establish that such a motive does not exist. If such a motive existed, the defendant may not know of it. There may be many reasons why a person may make a false complaint. The absence of some apparent motive to lie does not necessarily mean that the complainant is truthful.
  1. [33]
    The Doctors testified about matters of expert opinion. There was no challenge to their opinions, though they were clarified to some extent in cross-examination. In any event I am conscious that findings of fact are for me to make: this is not trial by expert. The prosecution did not rely upon the complainant’s evidence of domestic violence in 2014 and 2015 as proving a relevant and admissible propensity on the part of the defendant. The purported relevance of the evidence was to place the alleged offence in context and to answer any suggestion that it was unlikely such an act would occur “out of the blue”. The evidence, if accepted, does not make it more probable that the defendant committed the alleged offence.
  1. [34]
    The parties apparently differed as to how I was to approach the absence of evidence from other relevant witnesses to the events of January 2015. The defendant pointed to what he submitted was a failure by the prosecution to call Jake, who on the complainant’s account must have seen the defendant choking her, and the complainant’s children Brad and Tiarna, who could be expected to have witnesses the lead up to the event. In the absence of these witnesses I was invited to conclude that while I could not infer their evidence would have damaged the prosecution case, it would affect my willingness to accept the complainant’s evidence. For the prosecution it was said I should not accept that Jake could have been called as a witness. Senior Constable Sandon tried to contact him a number of times and he did not respond. As for Brad and Tiarna it was said they were unlikely to have shed light on the particular allegation of choking. For these reasons the prosecution submitted I should not speculate about what they might have said and consider only the evidence before me.
  1. [35]
    In truth, there is little to distinguish the positions of the parties. Neither suggest it would be appropriate to draw an inference adverse to the prosecution because of the absence of the witnesses. Neither say I should speculate about what those witnesses might have said. I am simply left in a position where I have only the complainant’s evidence to assess, there being no other testimony tending to support, or contradict, her account of the events.

The submissions of the parties

  1. [36]
    For the prosecution it was contended that I should accept the account of the complainant, beyond reasonable doubt, because it was inherently plausible, contained appropriate detail, and was delivered in a manner that was not prone to exaggeration. In support of the last point the prosecutor referred to the complainant’s evidence of her attempt to knee the defendant and kicking a hole in the bedroom door during the incident in October 2014, saying she testified even about matters that might reflect adversely upon her. In this regard I note that the concession of kicking a hole in the door came only in cross-examination and after the complainant was shown a photograph of the damage. It was submitted that detail in the complainant’s account included identifying where, with reference to photographs and other diagrams, relevant events took place. This is true, but the narrative was not a particularly complex one and I do not consider an ability to point to locations substantially enhanced the credit of the complainant.
  1. [37]
    The prosecutor submitted that inconsistencies in the complainant’s account were not enough to create a reasonable doubt. Accepting that the complainant did not mention being choked when police first arrived, the prosecutor submitted this might be the result of her understated manner or reluctance to speak in front of others. The prosecutor submitted that the other allegations of domestic violence could not have been recently invented as she told the police on 4 January 2017 the defendant had grabbed her around the throat. As to the complainant expressing to Dr De Wett that she felt “safe” at home the prosecutor submitted that it was entirely understandable a victim of domestic violence, especially one financially dependent upon the defendant, might say this.
  1. [38]
    The prosecutor invited me to reject the defendant’s account to police as being implausible. It was said that his account of walking too close to the complainant would hardly have prompted from her a violent response. His account was also criticised for lacking detail. As to the former, it must be noted that by all accounts what happened occurred in a period of considerable tension and argument concerning a possible move to Aura. An over-reaction in such circumstances would be understandable. In respect of the latter it is to be remembered that the conversation with police happened informally, in the kitchen and soon after they arrived. In any event, and as I have noted, the issue is not whether I believe the defendant’s account or not, but whether on all of the evidence I am left with a reasonable doubt about an essential element of the alleged offence.
  1. [39]
    For the defendant it was said that there were a constellation of features inconsistent with her account being truthful. These included her demeanour when speaking to police that night, her failure to immediately mention being choked and her preparedness to remain living at the house and tell the Doctor she felt safe. The first and last of these matter do not in my view undermine the credit of the complainant. We are far past the days where the law expected an immediate and uncontrolled emotional reaction to an assault, and adversely viewed the credit of those who did not behave as expected. And, as noted above, staying in the house is understandable for other reasons. Defence counsel challenged the characterisation of the complainant as forthright, instead suggesting that she was at times evasive or unresponsive and embellished her account, such as by suggesting that in January 2015 the defendant also choked her son Brad as he had done many times in the past.
  1. [40]
    Defence counsel referred to the complainant’s evidence that she had told police, including police investigating the alleged offence, about the events in 2014 and 2015. This was contradicted by the evidence of Senior Constable Sandon. It was said that I should accept the testimony of the police and that the complainant’s credit was seriously undermined by this false assertion.

Findings of fact and conclusions

  1. [41]
    I am not satisfied beyond reasonable doubt that the defendant choked the complainant in December 2017 as she described. There are three main reasons why I have a reasonable doubt that event occurred. First, it seems to me to be very surprising that if the complaint had been choked she did not mention that in her first interactions with police on the night. This is especially so if she had been violently assaulted by the defendant in the past, including by being choked or strangled. I am conscious that human behaviour is not uniform or necessarily predictable. One person’s reaction to a set of circumstances might differ greatly from another. But in the task in which I am engaged some assessment of normative behaviour, informed by my own common sense and experience, is necessary. Applying that common sense and experience it seems to me unlikely that a person in the position of the complainant would have failed to mention being choked to the extent and for the duration alleged when first asked to give an account of the events. Such an alarming event, similar to that which the complainant said occurred in 2015, might be expected to be at the very forefront of her mind. The complainant seemed calm when speaking to the police. She indicated, at least by gesture, she had been held by the defendant. There is no reason apparent to me why she could not have mentioned or demonstrated the alleged choking at this point.
  1. [42]
    I do not mean by what I have written to imply there can be any universal judgement as to how alleged victims of domestic violence should behave. I am considering only the evidence before me in the context of the allegations in this particular case. The fact that the complainant did give an indication of some of the alleged conduct, but not that concerning choking, is a matter that in this case raises a doubt about the accuracy of her evidence.
  1. [43]
    Secondly, I was troubled by the manner in which complainant testified. By this I do not mean her “demeanour”, but rather the view I formed that she did not properly respond to, and sometimes sought to evade, the questions she was asked. This is illustrated by an extract from cross-examination about the possibility of buying land at Aura.[15]

“Do you agree that prior to this, a couple of months prior to this, you had in fact put a contract on a place at Aura?We had.

Yeah.  And that had been cancelled in the cooling off period?No.  That was cancelled in January after this incident happened and I had – I didn’t have the access to the funds to do it.

Well, I would suggest to you that that’s not the case.  In fact, you had – that contract had been purchased in both names?Which contract are you referring to?  Because there was a contract for a block of land or there was a contract that was a combination of a residential and commercial property.

It was a contract a couple of months prior to this?I’d need more detail.  I’d need to know whether you’re talking about a block of land or the ready-built commercial residential property.

Well, what was the contract that you cancelled after this?The contract that was what, sorry?

That you cancelled after this.  You just told us about a contract you cancelled   ? [indistinct] the residential commercial property was cancelled in the January of 2015.

So I take it   ? [indistinct] an expression of interest and a contract was prepared for.  Any block of land there was no contract.

Well, was that something that you had signed unilateral, was it?  You had signed it by yourself?No contract had actually been signed.  They had been prepared.  Nothing had been signed.

Well, this was something that you hadn’t told him about.  Is that right?He was aware of it.  My daughter was actually going to use the commercial premises to run her own business out of.  He had conversations with her about it.

Well, I’d suggest to you that’s nonsense.  In any event, I asked you before lunch whether there’d been any contract signed before this incident and you said there wasn’t? [indistinct] contract signed, no.

Well, what was it?It was an expression of interest.

All right.  And that was something that you had signed alone, was it?It wasn’t something that needed to be signed.

Okay?I’d never signed anything without Tom being aware of it and Tom signing himself.  I’d never signed anything on my own.

All right.  Well, in any event, I’d suggest to you that he didn’t sign any document or agree to any discontinuance of any contract after this incident in December of 2017?No.  That’s why it was cancelled in January.

I’d suggest to you you in fact had signed whatever it was prior to this incident and told him on the 17th of December 2017 that you’d signed a contract in relation to another purchase of land at Aura?There was no contract for land at Aura.  And I haven’t signed anything, no.”

  1. [44]
    While this related to a peripheral matter, it demonstrated, in my mind, an unwillingness to directly respond to the questions being put. Another example of what to me seemed to unresponsive answers is set out in paragraph [16] above, relating to whether the complainant alleged choking when first speaking to the police. On its own these may not be sufficient to create reasonable doubt, but it has caused me to approach the evidence of the complainant with some caution.
  1. [45]
    The third matter of significant concern relates to when the complainant raised allegations of violence on 2014 and 2015. It is clear that there was police involvement soon after the events in January 2015, and this included an allegation made at the time of being grabbed around the throat by the defendant. There could be no serious suggestion of “recent invention” at least as concerns this incident. But the complainant was clear that she told police of these events “numerous times” only to be told the prior incidents could not be used in the prosecution of this alleged offence.[16] This included telling Senior Constable Sandon, who investigated the present matter, no later than February 2018.[17] The evidence of Sandon, set out above, is in stark contrast. I accept the evidence of Senior Constable Sandon. It is impossible to think that an experienced police officer investigating an allegation of choking in 2018 would ignore a claim that a similar event occurred, in front of witnesses, less than three years before. The fact that the written statement taken in February 2018 contained much by way of detail of the relationship between the complainant and defendant makes it even more unlikely that the absence of reference to the earlier incidents was the product of deliberate choice by the police officer, rather than omission by the complainant. It is reasonable to conclude that, having realised failing to refer to the other incidents at an earlier time was to her disadvantage, the complainant sought to deflect this by suggesting it was the fault of the police. That she was prepared to do so substantially damages her credit.
  1. [46]
    While it is strictly unnecessary to reach a conclusion about the accuracy of the defendant’s account to police, I would not be inclined to accept his version of events. It is concerning that the defendant made no mention of grabbing the complainant until the police officer returned with a version from the complainant. This suggests he at least was trying to minimise his actions during the incident. It is also odd that on the defendant’s version, when he had the complainant by her arms, she would complain about being unable to breathe. I do not think the defendant’s version is entirely true and accurate. But on my assessment of all of the evidence, I am left with a reasonable doubt about his guilt.
  1. [47]
    The matters I have mentioned above are sufficient to create in my mind a reasonable doubt about the allegation of choking. For the preceding reasons I find the defendant not guilty.

Footnotes

[1] R v RT [2020] QDCPR 30.

[2] Woolmington v The Director of Public Prosecutions [1935] UKHL 1; (1935) AC 462.

[3] R v HBZ [2020] QCA 73 at [57].

[4] To avoid confusion, and without intending to offend, I refer to her as the complainant.

[5] Both Doctors gave evidence over the telephone. While each to some extent gave evidence as an expert witness, in the absence of a jury it is not necessary to caution against treating the evidence differently because of how it was received – Evidence Act 1977 (Qld) section 39PC. In any event I have not regarded their evidence as being affected by the means by which it was received.

[6] A large housing development south of Caloundra.

[7] It was not tendered, but was said by both parties to effectively the same as footage that forms part of Exhibit 6. I have not relied upon what I saw when the footage was played to the complainant, instead having regard to her answers when questioned about it.

[8] T.1-45.26-39.

[9] T.1-81.6-16.

[10] T.1-97.33-35.

[11] T.1-98.5-22.

[12] The transcript records Constable Sandon using the name “Blake” but it was clearly a reference to Jake – T.1-98.36-43.

[13] R v DAH (2004) 150 A Crim R 14; [2004] QCA 419.

[14] Cf. Liberato v The Queen (1985) 159 CLR 507; De Silva v The Queen [2019] HCA 48, at [11].

[15] T.1-62.32-T.1-63.37

[16] T.1-49.39-42.

[17] T.1-81.1-26.

Close

Editorial Notes

  • Published Case Name:

    R v RT (No. 2)

  • Shortened Case Name:

    R v RT (No. 2)

  • MNC:

    [2020] QDC 158

  • Court:

    QDC

  • Judge(s):

    Cash QC DCJ

  • Date:

    13 Jul 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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