R v Latsamyvong[2017] QCA 174

SUPREME COURT OF QUEENSLAND

1. FRASER JA:  I agree with the reasons for judgment of Boddice J and the order proposed by his Honour.
2. GOTTERSON JA:  I agree with the order proposed by Boddice J and with the reasons given by his Honour.
3. BODDICE J:  On 1 August 2016, the appellant pleaded not guilty to one count of torture (Count 1), five counts of common assault (Counts 2, 5, 12, 13 and 14), three counts of assault occasioning bodily harm (Counts 3, 6 and 7), one count of assault occasioning bodily harm whilst armed (Count 4), one count of sexual assault (Count 8), one count of observations or recording in breach of privacy (Count 9) and two counts of grievous bodily harm (Counts 10 and 11).  Each count was alleged to be a domestic violence offence.
4. On 5 August 2016, the jury returned verdicts of guilty of one count of torture (Count 1), two counts of common assault (Counts 12 and 13), three counts of assault occasioning bodily harm (Counts 3, 6 and 7), one count of sexual assault (Count 8), one count of observations or recordings in breach of privacy (Count 9) and two counts of grievous bodily harm (Counts 10 and 11).  The jury found the appellant not guilty of three counts of common assault (Counts 2, 5 and 14) and of one count of assault occasioning bodily harm while armed (Count 4).
5. On 11 August 2016, the appellant was convicted and sentenced to six years imprisonment on the count of torture.  It was declared he had been convicted of a serious violent offence.  The appellant was convicted but not further punished in respect of the remaining counts.  All convictions were recorded as domestic violence offences.  Pre-sentence custody of 539 days was declared as time served in the sentence of imprisonment.
6. The appellant appeals his conviction.  The only ground of appeal listed in the notice of appeal is that the trial Judge erred in failing to direct the jury in relation to s 24 of the Criminal Code.  However, the appellant’s outline contends the findings of the jury were contrary to the evidence as a whole.  Further, the verdicts of guilty were inconsistent with the jury having found him not guilty of other counts on the indictment.

Background

7. The appellant was born on 1 May 1976.  The female complainant was born on 1 April 1981.  At the time of the offences they were in a relationship.  That relationship had commenced in late October/early November 2014.  All of the offences were committed between 1 November 2014 and 10 January 2015.

Crown case

8. In respect of count 1, torture, the Crown relied upon the incidents the subject of the remaining counts in support of a contention that the conduct of the appellant throughout the relationship evidenced the appellant intentionally inflicted severe pain and suffering on the complainant such as to constitute torture.
9. Count 2, common assault, related to an event in mid to late November at a park on McKenzie Street, Cairns.  The appellant put a belt around the complainant’s neck and pulled it tight causing her to lose consciousness.
10. Count 3, assault occasioning bodily harm, related to an event in the last week of November 2014 at a carpark on The Esplanade at Cairns.  The appellant punched the complainant in the eye and across her nose after the complainant had asked for a cigarette from some backpackers.
11. Count 4, assault occasioning bodily harm while armed, related to an event in the first week in December 2014 at a carpark on The Esplanade at Cairns.  The appellant punched the complainant in the stomach, held a knife against her throat, causing a minor cut, cut the complainant’s clothes off and dragged her along the ground and into a puddle.
12. Count 5, common assault, related to an event on a date unknown but after the occasions relied upon in counts 3 and 4, at Buchans Point.  The appellant poured petrol over the complainant and held a cigarette lighter near her threatening to set her alight.
13. Count 6, assault occasioning bodily harm, related to an event on or about 13 December 2014 at the Rainbow Inn at Cairns.  The appellant headbutted the complainant, hitting the bridge of her nose causing it to bleed.
14. Count 7, assault occasioning bodily harm, related to an event on or about 14 December 2014 at the Rainbow Inn at Cairns.  The appellant headbutted and punched the complainant to the head causing her nose to bleed.
15. Count 8, sexual assault, related to an event at the Rainbow Inn between 12 and 15 December 2014.  The appellant urinated on the complainant and slapped her to the head.  This incident was recorded on the appellant’s phone.
16. Count 9, recordings in breach of privacy, related to the same event.  The appellant, without the complainant’s consent, recorded the genital region of the complainant.
17. Count 10, grievous bodily harm, related to an event near Glenoma Park in Cairns on a date unknown in December but after the Rainbow Inn incidents.  The appellant caused serious disfigurement to the complainant by cutting star shapes into her buttocks with a knife.
18. Count 11, grievous bodily harm, related to an event near Glenoma Park on an unknown date in December but on a different occasion in count 10.  The appellant caused serious disfigurement to the complainant by cutting her face three times under her left eye with a knife.
19. Count 12, common assault, related to an event at Glenoma Park near Cairns on or about 23 December 2014.  The appellant punched the complainant to the face.
20. Count 13, common assault, related to an event at the appellant’s unit around the end of December 2014.  The appellant held a knife against the complainant’s left arm.
21. Count 14, common assault, related to an event at the appellant’s unit around the end of December 2014.  The appellant pushed the end of a barbeque lighter into the complainant’s left eye.

Complainant’s evidence

22. The complainant gave evidence that she had known the appellant for a couple of years prior to commencing a sexual relationship with him towards the end of October or the start of November 2014.  She knew the appellant by the name “Star”.  He was her drug dealer.  Initially the relationship was okay.  It was “just sex”.^[1]  After the first week or two of their relationship it became violent.  The violence became more frequent over time.
23. The complainant said she never lived with the appellant.  They retained separate bank accounts and separate keycards.  However, the appellant forcibly took her keycard so that he could control her money.  He made her change her Centrelink password and the pin number on her card.  When she needed money, the appellant would hand over her keycard and tell her what to get.  He would sit in the car and watch her.  In order to buy something, the complainant would “grovel on the ground”.^[2]
24. The complainant recalled an occasion when the appellant asked her to meet him at the Bendigo Bank in Cairns.  The appellant sent her to buy a carton of beer.  They sat and drank together.  They then walked to a park and had sex.  They continued drinking together.  At one point they argued.  The appellant removed his belt and put it around the complainant’s neck.  The complainant could remember the appellant pulling the belt extremely tight around her neck so she could not breathe.  It was only a few seconds before she became unconscious.
25. The complainant next remembered being shaken by a man trying to wake her up.  She was on the road.  She got off the roadway and saw her handbag had been strewn all over the road.  She collected her possessions and proceeded home to the flat she shared with her ex-partner Adam and their daughter.  When she left the area neither the appellant nor his motor vehicle were there.  As she was crossing a railway line in a dark area she was yanked from behind by four young men.  They dragged her over a fence and tried to part her legs.  She fought them off and managed to get away.  When she arrived home the complainant told Adam what had happened with the four young men.  She did not tell him about what had happened with the appellant.
26. The complainant said Adam convinced her to go to the doctor the next day.  She had considerable bruising on the inside of both her thighs, groin and knee.  Her jaw was also quite sore.  The complainant met with the appellant later that day.  She asked the appellant what had happened last night.  The appellant told her he had choked her until she had fallen unconscious and her head had fallen behind his motor vehicle.  The appellant had a “sort of psychotic chuckle”^[3] about the fact that he was going to reverse over her head.
27. The complainant said the next occasion the appellant was violent towards her was less than a week later.  They had been swimming near The Esplanade.  They obtained some alcohol and sat drinking at the very end of the carpark.  The complainant said something which upset the appellant.  The appellant punched her to the face.  The complainant fell to the ground.  The appellant was yelling at her to get up.  He said if she did not get up he was going to kick her.  The appellant then swung his foot at her face.  He was wearing steel cap boots.  The complainant moved quickly so as to avoid the appellant’s boot.  The complainant said she suffered swelling to her jaw around her cheek area.  She went to the doctor the following day.  She told the doctor the appellant had assaulted her.
28. The complainant said that thereafter the violence became a daily occurrence.  The appellant was stalking her.  The next specific occasion the complainant could recall also occurred at The Esplanade.  Again, they had been drinking together.  The complainant said something to the appellant about being worried she could be pregnant.  The appellant said “you’re not f---ing pregnant”^[4] and punched her hard in the stomach.  The complainant doubled over in pain.  The appellant then reached into his utility and grabbed a knife.  He pressed it so hard to her throat that it punctured the skin.  The complainant was terrified he was going to kill her.  She started to cry which made the appellant even more angry.  The complainant was begging him not to hurt her.
29. The complainant said that although there were people around, the appellant used the knife to cut her clothes down all the way through to her underwear.  The appellant cut every piece of clothing off her and left her standing naked beside his utility.  The appellant told her to walk back home.  The complainant was really cold and begged him to give her a towel so that she could cover herself up.  The appellant punched her in the head and she hit the ground.
30. The complainant said that whilst on the ground she curled up so that people could not see her naked body.  The appellant walked up, grabbed her by the hair, dragged her across the bitumen on her back and dropped her in a puddle.  She suffered big grazes down her spine.  After a while she calmed the appellant down.  He let her hop into his utility.  By that stage, the complainant was shivering and very cold.  She slept in the utility that night.
31. The complainant said on another occasion she went to a beach area with the appellant.  They sat there drinking into the night.  At one point, she mentioned she was a really good swimmer.  The appellant told her to get undressed and to swim to Double Island.  The appellant used a torch to see where she was in the water.  The appellant told her not to come back in because he would kill her; he would drag her out and drown her.  The appellant had “a habit of making pretty nasty threats”.^[5]
32. The complainant swam for about an hour.  She was starting to get pretty exhausted so she swam back in.  She told the appellant she was really cold and could not make it.
33. The complainant was shivering and tried to get close to the fire the appellant had made on the beach.  The appellant picked up a big pile of burning kindling and put it on her stomach.  The complainant was naked at this point.  The appellant said “you’ll be nice and warm now”^[6] or something like that.  The complainant said she quickly brushed the burning kindling off and jumped up.
34. The appellant then grabbed a little red jerry can beside the fire and tipped petrol over the complainant’s head and body.  The appellant stood with a lighter telling her that if she was really cold he could heat things up.  The complainant was terrified and her whole body felt like it was burning from her eyes to her toes.  She developed blisters everywhere.  When the appellant let go of the lighter the complainant ran to the water but the petrol would not come off.  The complainant was begging for her life asking the appellant not to hurt her.
35. The complainant said on another occasion she was staying at the Rainbow Inn in Cairns with the appellant.  They had booked a room for a couple of nights.  Whilst there, she received daily beatings from the appellant.  She was constantly left with black eyes or swollen parts of her face or bruises to her body.  When the complainant befriended a young couple by the pool, the appellant stormed over and told her to get out of the pool and to go upstairs.
36. When the complainant went back to the unit the appellant “had a go at me” because he did not like the complainant talking to anyone.  He was “really psychotic”.^[7]  The appellant headbutted her and cracked her across her nose.  Blood started pouring out.  She was dazed and confused.  That happened on the first evening they stayed at the Rainbow Inn.  The appellant gave her a couple of good punches later that evening.
37. The complainant said the next morning she was sitting on the verandah listening to music.  The female from the young couple she had spoken to the day before asked her if everything was okay.  The appellant was standing behind her.  She was trying to wave away the young woman, mouthing words “no don’t”.  The appellant started to go off at the young woman.  Subsequently the police arrived at the Rainbow Inn.  The young woman had called the police.
38. The complainant spoke to the police that day.  The appellant was with her in the doorway.  The complainant said she refused to say much of anything.  One of the officers, a female, asked her to come down the stairs.  The complainant did so but did not tell the female police officer that the appellant hit her.  The complainant was scared the appellant would hear her say it or it would get back to him and he would hurt her.  The police left the area.
39. The complainant said as soon as they were back inside the room, the appellant headbutted her again.  He punched her and she collapsed on the bed and passed out unconscious.  The appellant hit her a couple of times in the head.  He blamed her for the presence of the police.  The appellant was angry he had had to deal with the police.  The complainant was bleeding from the nose.
40. The complainant said some time that same day the appellant grabbed her and put her on a plastic chair in the middle of the room.  She became unconscious.  When she came to, the whole room had ropes from every corner, everywhere.  They were tied around her neck and whole body.  The complainant was completely immobilised, tied to the chair.  Whilst in that position, the appellant picked up a hair brush and assaulted her with it.  He then stood over the top of her on the bed that was beside the single chair and urinated over her.  The appellant then untied her.
41. The complainant said she remembered seeing the appellant holding his telephone.  Later he showed her a recording he had made on the phone when she was unconscious on the bed.  The appellant filmed his penis and urinating on the appellant’s face.  During the recording, the appellant was telling her to open her mouth.  The recording showed the appellant assaulting the complainant with the hairbrush.  It also showed the complainant’s naked vagina.  The complainant denied she requested or enticed the appellant to tie her up, urinate over her and record it.
42. The complainant waited until the appellant passed out and then went down to the pool.  She collapsed next to the pool.  The complainant next remembered being woken up by ambulance officers who took her to hospital.  When she awoke in hospital the appellant was sitting right beside her.  The appellant told hospital staff it was due to lack of sleep.
43. The complainant said that during the relationship the appellant started to talk about marking her in some way.  She had a small tattoo of a rose with her daughter’s father’s name in the middle of it on her body.  The appellant did not like it.  He felt she belonged to him.  He was determined to cut out her daughter’s father’s name and slice the skin off.  The complainant told him he was not touching that tattoo.  The appellant in the end decided he was going to brand her.
44. The appellant purchased a stencil of a star about the size of a large man’s palm of the hand.  The appellant told her he was going to use it to mark her.  They travelled to a park together.  The appellant told her to take off her clothes and to lean over a log.  He told her to not make a sound otherwise it would be worse.  The complainant had seen the appellant sharpening his knife.  The appellant then put a stencil on one of the cheeks of the complainant’s bottom.  He drew around it with a biro.  He did the same thing on the other cheek.
45. The appellant proceeded to cut open the complainant’s skin.  It was extremely painful.  The complainant did not move or make a sound in case he did something to her.  It lasted a couple of hours.  The cut was a good couple of millimetres deep.  When the appellant finished, he picked up a handful of river sand and rubbed it into the wound on both sides.  The complainant was left with scars as a result.  The complainant denied asking the appellant to cut a star shape with a knife on both cheeks of her bottom.  She denied she had suggested getting a star-shaped stencil from the shops.
46. The complainant said shortly after this episode they returned to the same park.  The appellant said he did not like anyone looking at the complainant.  He said a couple of good scars on her face would suit her and no-one would look at her again.  She protested but the appellant held the top of her head and proceeded to cut her three times on the left side of her cheek, almost the whole length of her cheek.  The cuts were a couple of millimetres deep.  She still has scars she covers up with makeup.  The complainant denied making the cuts to her face.  She agreed she told police a cat had scratched her.
47. The complainant said on another occasion at the same park she had an altercation with the appellant.  The appellant punched her several times.  Towards the end of the night, she went to go to the toilet.  Whilst walking to the toilet she collapsed onto the ground.  She was found by a young woman the following morning.  She was in excruciating pain and was hardly able to move her legs or arms.  The appellant was asleep in his utility.
48. The complainant said she begged the young woman not to call the police because she was scared of what might happen to her.  The young woman called the police and ambulance.  The complainant did not tell the police what had happened to her.  The ambulance took her to hospital.  She was found to have a fracture in her neck.  She was hospitalised for some days.  She was fitted with a medical device called a halo.
49. The appellant visited the complainant at the hospital every day.  He did not inflict any violence on her whilst in hospital.  The complainant left the hospital the day before New Year’s Eve.  The appellant told her she was okay and he would look after her.  She went to a unit where the appellant’s girlfriend lived.  The appellant told her they were no longer together.  The complainant later found out they were still together.
50. After a couple of days the complainant said she moved the wrong way and one of the bolts in the halo slipped.  The complainant asked the appellant to drive her back to the hospital.  He told her to “fuck off and walk”.^[8]  The complainant walked to the hospital, and back to where she was staying after having the bolt adjusted.
51. On the next night she tried to commit suicide by cutting open her left arm.  The appellant grabbed a filleting knife off the bench, reefed out her arm and poked the knife into her arm where it almost pierced the skin.  The appellant told her that if she wanted to kill herself, he would do it properly, right here, right now.  That same night the appellant picked up a barbeque lighter, shoved it in her eye hitting her eyeball and sparked it.  The complainant later left the house.  That was the last time she saw the appellant.  She ended the relationship with him completely.
52. The complainant said she did not tell anybody about what was happening to her during the relationship because she was scared the appellant would do a lot worse to her if she said something to anybody.  The appellant had already threatened to “string me up out in the bush”.^[9]  She kept up with the lies because it was easier.  She denied her ex-partner ever assaulted her during this period.  She denied consenting to any of the assaults or the cuts to her cheeks or face.
53. The complainant agreed she was drunk on many occasions.  She agreed she had lied to her doctor on occasions to obtain medication.  She had an addiction to drugs.  The complainant accepted she may have told a drug and alcohol counsellor that her ex-partner was physically abusive towards her but said that was a story she used.  She agreed she had cut her own arm prior to the appellant coming into her life when she was having problems in her life.
54. The complainant accepted she had mentioned in idle conversation with the appellant bondage and sadomasochistic type sexual relations but denied she had ever told the appellant she wanted him to do that to her.  The complainant had already been assaulted by the appellant on a number of occasions and the appellant was not the right person to ask to do that.  She denied she wanted the appellant to dominate her in an S & M type sexual relationship.  She also denied encouraging the appellant to give her what was called a golden shower.  She denied wanting those recordings done to show her ex-partner.
55. The complainant denied that at around Christmas the appellant tried to end the relationship with her.  She also denied the injury to her neck was as a result of an accident she had whilst swimming with her daughter.  She accepted she had used that excuse to her ex-partner and to hospital staff.  It was a lie.  It was the only thing she could think of at the time.
56. The complainant denied she was upset with the appellant because he was staying with his former partner.  The complainant agreed that in January 2015, the appellant tried to get her to write a false statement to police in respect of a driving incident.  She refused to write a statement.  She was not prepared to lie for the appellant.  She denied she was angry with the appellant because he had finished the relationship with her.

Medical evidence

57. Rohit Goel, a general practitioner based in Cairns had the complainant as one of his patients.  He gave details of three presentations by the complainant.  On 3 November 2014, the complainant presented with a swollen top lip that was lacerated and some bruising to her arms.  On 20 November 2014, the complainant presented with a large bruise on her left lower jaw and a graze on her left knee.  On 11 December 2014, the complainant presented with a bruise to her right eye, a graze to her right knee and a swollen right jaw.
58. Phillip Stone, a medical practitioner based at the Cairns Base Hospital, gave evidence that the hospital notes recorded the complainant had presented to the hospital on 14 December 2014 by ambulance.  Examination demonstrated she had multiple bruises and scratches to her limbs and neck and a bruise to her forehead.
59. Doctor Mark Loman, an orthopaedic registrar at the Cairns Base Hospital, gave evidence the complainant presented to that hospital on 23 December 2014.  She had sustained a cervical spine fracture.  She required application of what is called a halo or a brace external fixator.  That was put in place on the following day.  The complainant self-discharged from hospital that same day.  She was readmitted to the hospital on 28 December 2014 for some adjustment of the halo.  She was discharged again on 30 December 2014.

Other evidence

60. Luke Russell, a police officer, spoke to the appellant late on the evening of 10 December 2014.  The appellant was near his utility.  He was with the complainant.  The appellant was talkative but did not appear under the influence of alcohol.  He may have been under the influence of another substance.  The complainant was definitely under the influence of something.  A search of the vehicle located four or five knives, all secured in knife carriers.  Two or three of the knives were located inside the cabin of the utility.  The other knives were with the fishing and camping equipment.  One knife was small.  The others were standard hunting and fishing knives.
61. Renae Kalinowski, a police officer, was called to the Rainbow Inn on 13 December 2014.  She went to a unit and located the complainant and the appellant.  She separated the complainant from the appellant and spoke to her briefly.  The complainant appeared calm and happy and was talking freely.  The complainant had quite a bit of bruising between her knee and ankle.  The complainant told her the bruising was self-inflicted.  She did not observe any injuries to the complainant’s face.  Kalinowski then left the area.
62. Jeremy Lawrence, an ambulance officer, attended the Rainbow Inn early on the morning of 14 December 2014.  He observed the complainant lying on the ground near the spa.  The complainant was not wearing any clothing.  She was covered in a towel when they first found her.  She was rousable but not 100 per cent conscious.  She smelt of liquor.  The complainant was able to speak.  She told them her first name and said she had been in the spa that morning.  He assessed the complainant as being hypothermic.  She was warmed and transported to hospital.
63. Stephen Zeigelbauer, a police officer, attended the Rainbow Inn at around 5.55 am on 14 December 2014.  There was an ambulance at the scene.  Ambulance officers were attending to the complainant by the pool.  The complainant was soaking wet and appeared affected by some substance.  The complainant could not say what had happened to her.  Zeigelbauer then attended a room in the inn.  He woke up the appellant.  The room was extremely messy with a strong smell of vomit.
64. Paul Musamara, a police officer, also went to the Rainbow Inn.  He attended the appellant’s room.  He described it as having a foul stench of stale beer and old food.  The appellant was lying on the bed.  It took a couple of attempts to wake him.  The appellant was asked why the complainant was in the pool.  The appellant said he did not know.  They had had a few drinks and she went outside.
65. Michael Fletcher, a police officer, observed a white four wheel drive utility parked in Glenoma Park near the Freshwater swimming hole early on the morning of 16 December 2014.  Two people were in the utility, a male and a female.  He switched on his lights and sirens but neither moved.  He then left the police vehicle to investigate further.  The male person was asleep in the driver’s seat with his head tilted back slightly and his mouth open.  The female was asleep in the passenger seat with her head tilted back much further and her mouth open much wider.  The keys were in the ignition.
66. Fletcher said it took a long time to wake those people.  The driver awoke first.  He identified himself as the appellant.  Fletcher detected a strong smell of alcohol on his breath.  The female did not rouse at all initially.  Fletcher attempted to call an ambulance as he was concerned for her safety.  After approximately five minutes of trying to wake her, the female roused and Fletcher cancelled the ambulance.  The female identified herself as the complainant.
67. Fletcher said as a result of conducting a breath test, the appellant was transported to the police station.  The complainant attended with the appellant.  A breath test undertaken on the complainant revealed a reading of 0.198.  The appellant and the complainant left the police station at about 5.40 am.
68. Carl Durham was present at the Freshwater swimming hole on the morning of 23 December 2014.  He observed a woman on the ground and another woman standing beside her with a dog.  The female on the ground had dirty clothes and some injuries like bruises on her arm.  She was in distress.  She identified herself as the complainant.  Later he was approached by the appellant.  The appellant asked the complainant “What have you done?” and said “You shouldn’t drink”.^[10]  The appellant had approached from a white utility parked further down in the car park area.  The complainant initially indicated she did not want an ambulance called but Durham called the ambulance.  He left the scene after the arrival of the ambulance and police.
69. Takeshi Fujitani, a paramedic with the Queensland Ambulance Service, attended an incident near the Freshwater swimming pool on the morning of 23 December 2014.  He was introduced to the complainant who was in the company of police officers.  His first impression was that the complainant did not have life threatening injuries.  She looked a little bit scruffy, untidy and like she had slept overnight in the park.  He did not recall any obvious injuries.  The complainant spoke of very vague pain at the back of the neck on the left side of her head.  As it was minor pain, he administered a small dose of paracetamol.  He vaguely recalled some minor bruising to the face.  There was, however, no obvious bruise to the back of the head where she was complaining of pain.  The complainant was transported to the Cairns Base Hospital for further treatment.
70. Damon Smalley, a police officer, attended Glenoma Park at around 10.25 am on the morning of 23 December 2014.  He observed the appellant and the complainant at that location.  The appellant appeared to have been drinking but was able to understand what Smalley was saying to him.  The complainant was sitting on a bank at the side of the car park.  Smalley’s colleagues spoke to her at that time.  He also briefly spoke to the complainant.  She did not make any complaint at that time.  A search of the appellant’s motor vehicle located some knives behind the seat in the footwell.

Other evidence

71. Adam Newman, the former partner of the complainant and the father the complainant’s daughter, was in a relationship with the complainant for approximately 11 years.  They separated in about 2013.  They remained living together for a period after their separation.  He had a joint bank account with the complainant when she was living with him.  Newman agreed he had verbal fights with the complainant but denied ever having physical fights with her.  He denied ever striking the complainant.
72. Newman knew the appellant by the name Star.  There were occasions when the appellant would come and pick up the complainant.  The complainant came home upset with the appellant on many occasions.  He recalled an occasion in November 2014 when she was attacked by some youths on her way home from the appellant.  The complainant went to the doctor the following day.  He also recalled visiting the complainant in hospital just after Christmas 2014.  The complainant had disappeared for about a month between the incident involving the youths and her stay in hospital.
73. Newman recalled an incident in which the complainant was injured by their daughter jumping on top of her at the Freshwater swimming hole.  That was before the complainant received a medical device for an injury to her neck.  The appellant was present when the complainant was injured by the daughter.  The complainant was living with him at that time.  However, it was after their separation.  When he visited the complainant in hospital she had the medical device on her head and “looked pretty banged up”.^[11]  She had cuts on the side of her face.  Her face looked skinny like she had been drinking.
74. Rajdeep Singh, a taxi driver, collected the complainant from a street in Cairns on the evening of New Year’s Eve.  The complainant was wearing some sort of neck brace.  She was crying and trying to tell him something but he could not understand her.  He took her to an address at Westcourt.  She said she would have to go inside and ask her father to pay as she did not have any money.  He spoke to the complainant’s father and made arrangements for him to pay the following day.
75. Keith Hodges, the complainant’s father, recalled seeing the complainant at the Cairns Base Hospital in mid-December 2014.  They had not had contact for some time.  The complainant had a medical device around her head.  The complainant burst out crying.  Whilst there the complainant introduced him to the appellant.  Hodges offered to take the complainant home.  The appellant said they would catch a taxi.
76. Hodges next saw the complainant when she arrived at his home by taxi at around 11.00 or 12.00 one night.  The complainant was standing at the door crying.  She was very upset.  The complainant had no money to pay the taxi driver.  He spoke to the taxi driver and arranged to pay the following day.  In the following days the complainant spoke to him as a result of which he took her to the police station.
77. Darlene Webb, a police officer, attended the appellant’s residence on 19 January 2015 to deliver some paperwork relating to the complainant.  Whilst there the appellant told her he had “cut a star” on the complainant’s backside to cover up a tattoo from her ex‑boyfriend.^[12]
78. Robert Musumeci undertook an analysis of the appellant’s mobile phone.  His analysis revealed a number of deleted videos and pictures.  Two video files were recovered by him.  The material recovered was part only of the original file.  What was recovered was constructed from located and lost fragments.  Some of the data had been overwritten.  The original file was 15 minutes long.  Only about nine minutes was recovered.  A second video recovered was recovered in full.  Musumeci agreed a deleted file can arise in a variety of different ways.
79. Shane Wockner, the investigating officer, said there was depicted within the recovered material a recording of the episode in which the appellant urinated on the complainant.  Wockner showed the complainant the video in the course of the investigation.  The complainant was only able to watch a portion of it before she became upset and could not watch anymore.

Appellant’s evidence

80. The appellant gave evidence that he first met the complainant in 2010.  Initially, they were just friends.  In early September 2014, the complainant said “Star, would you fuck me?”^[13]  The appellant said it made him feel awkward.  He asked her to calm down and to go for a ride on her bike.  At that time the appellant was living with his partner, Natasha Richardson.  A week or so later, the complainant propositioned him again.  He replied he could not do that to Natasha or the complainant’s partner, Adam.  The complainant replied “Star’s got no heart”.^[14]
81. The appellant said approximately a week later the complainant asked him to drive her to the supermarket to get some beer and food.  On the way home she asked him to pull into a park near her home.  The complainant suddenly grabbed his genitals.  She said “Star I want to fuck you”.^[15]  The appellant asked her why she would like to do this with him.  The complainant said that the first time she saw him she was attracted to him.  The appellant said “look … if you reckon we’d have fun, there - there cannot be attachment”.^[16]  The complainant said that that was fine, she just wanted a novelty.  Thereafter he met with the complainant regularly.  Initially she would call him from a public phone.  After some time, their dates were prearranged and he would pick her up from various places.
82. The appellant remembered the evening of 19 November 2014.  They were at a barbeque on The Esplanade.  The complainant was asking him if they could have sexual intercourse.  He said not tonight, he had to go home early.  He helped unlock the complainant’s bike which was parked underneath the Bendigo Bank building.  When he came back the complainant was on the ground.  He helped her get up because she had fallen down on the side of the road.  They agreed to meet the next day.  He then drove home.  On no occasion did he put a belt around the complainant’s neck that evening.
83. The appellant said the next day he received a telephone call from the complainant.  The complainant said she had just finished seeing a doctor.  They met outside a chemist.  When he arrived he saw both the complainant and her ex-partner.  The complainant told him that after she had left him that night, she had been attacked by a male.  She showed him her bruise.  He asked if she was alright.  During this conversation he asked the complainant what she was on last night.  He said if he had not helped her get up, he would not have known she was there and could have reversed over her.  He denied telling her he would run over her head.
84. The appellant said on another occasion, when they were drinking on The Esplanade, the complainant became angry with him when he answered a telephone call.  The complainant was intoxicated and approaching tourists.  He told the complainant not to come near because she was acting like “a parkie”.  The complainant hit him on the left ear.  In retaliation, he grabbed a sauce bottle and squeezed sauce over her.  A short time later police arrived at the scene.  Police approached them and questioned him.  He told police what had happened.  They told him to take the complainant home.  The appellant denied there was ever an incident on The Esplanade where he had cut off the complainant’s clothes.
85. The appellant said on 14 December they were having a barbeque by the seashore.  They were having no luck with their fishing lines.  The complainant recommended they go near the mangroves.  She took his fishing rod and walked out in the water knee high.  When she returned she asked for a towel.  He did not have one but the complainant managed to find a towel in the toilet.  The towel did not belong to him.  They then discussed where to sleep.  The complainant said Glenoma Park.  They then drove to that park.
86. The appellant parked his utility and used it as a windshield, putting a tarp on the other side.  They slept there that night.  He awoke around 6.30 the next morning.  The complainant was still sleeping.  He hopped back into his car to rest his eyes.  Around 7.00 the complainant jumped into the passenger side.  He told her not to drink too much as they had some appointments later that day.  The complainant kept trying to wake him up but he wanted to sleep for longer.
87. The appellant said at some point the complainant left the car.  He then noticed people milling around about 40 metres away from the car.  He went to look and saw the complainant lying on the ground.  He asked her what happened.  The complainant replied that she had tripped and fallen over.  He told her she should not drink too much and this would not happen.  Police and ambulance arrived at the scene.  The police searched his utility.  They found knives among the camping gear.
88. The ambulance took the complainant to the emergency department.  The appellant was taken to the police station.  After he was released, he went home to freshen up and walked back to the hospital.  The appellant found the complainant outside the emergency department sitting on a chair.  She then quickly left the hospital.  He told her he had just lost his licence.  The complainant said she would drive.  He said “No, you have no licence.”
89. The appellant said that on other occasions he camped with the complainant at Buchans Point near Ellis Beach.  On one such occasion the complainant had been drinking all afternoon.  He was cleaning the area where they planned to make a fire.  He lit the fire and started to enjoy a drink.  The complainant said “I want to fuck”.^[17]  He said maybe later.  About five minutes later the complainant took off her clothes and went for a swim.
90. The appellant was worried about stingers and sharks.  He found a torch and commenced looking for her.  He could not find her in the water.  The appellant then pretended to pack and leave.  He put out the camp fire, obtained his rod and turned on the lights of the car.  A short time later the complainant came back.  They slept in the tarp together.  He denied having any altercation with the complainant that night.  He did not douse her with petrol.  He did not have any petrol with him.
91. The appellant said he did stay at the Rainbow Inn with the complainant in December 2014.  They checked in around midday on 12 December 2014.  The complainant had suggested they stay there.  When they arrived they unpacked and kept to themselves.  They had an early night.  They did not talk to any other people.  They had sexual intercourse and went to sleep.
92. The appellant said the next day they both woke up early.  They went to purchase some items and returned around lunch time.  The complainant decided to go for a swim in the pool.  The appellant remained on the verandah of the unit.  A short time later the complainant returned to the unit.  A young lady was walking by and asked the complainant if she was okay.  The appellant replied “yeah, she’s okay, why wouldn’t she be”.^[18]  The young lady said she was going to call the police.  The police arrived about 15 minutes later.  He had a short conversation with the police who then left.
93. Later that night, whilst they were drinking, the complainant became hostile towards her ex-partner.  The complainant asked the appellant “are you going to tie me up tonight, just bang me hard and [indistinct] on me and record it”.^[19]  The appellant said “you’re crazy”.  The complainant said “no, remember I told you that I want to get a room for three days - three nights.  I think you’re the right person to have fun with”.  The appellant thought she was just talking.
94. While they continued to drink, the appellant saw the complainant playing with rope in his abseiling bag.  She put the rope around her body and said “come on, do something to me”.  He asked what and the complainant replied “go get your phone or something, record it”.^[20]  The appellant got his phone but could not remember what he did.  He was filming what he was requested to do by the complainant.
95. The appellant said the first time he had viewed the film was in court.  He had seen bits earlier but not the whole lot.  He had forgotten about it but one day, while he was cleaning the kitchen, the complainant said “let’s watch those recordings that you made”.^[21]  He gave the complainant the phone and she commenced watching the recording.  The complainant said “I like man who can control me, dominate me”.^[22]  The complainant asked how to send it on.  He quickly grabbed the phone and deleted the recording.  The appellant said that he did not recall making the other recording of the complainant eating food.
96. The appellant denied having any physical fights with the complainant at the Rainbow Inn.  The appellant said that on the day they were due to check out, he was awoken by police.  He was asked if he knew the complainant.  He was also asked if he had had any drugs that night.  He said they only had alcohol.  A police officer told him they had not been able to wake the complainant up by the pool and she had been taken to hospital.  He checked out and went to the emergency department.  He found the complainant in a deep sleep at the hospital.  When she awoke she was happy to see him.  A half an hour later the complainant discharged herself.  There was nothing wrong with her.  She had hypothermia.
97. The appellant said the complainant suggested they go to the beach.  They drove to Glenoma Park at around 10.00 on 15 December 2014.  The complainant was naked, sitting on the sand.  She had beer in her hands.  The complainant said her tattoo was “crap”.  She asked him when he was going to do the stars.  He thought she was joking.  He asked her what made her think she would not regret having another name there.  The complainant told him she wanted two stars there like a mirror view.  She wanted one on top of the tattoo with her ex-boyfriend’s name.  The other star was to be a balanced artwork.
98. The appellant said he decided to draw freehand but was not happy with his handiwork.  The complainant told him to go and find a star stencil.  They left the area and drove to a shopping centre.  He came across some stars at the supermarket.  Whilst he did so, the complainant went to the toilet.  They then purchased some food and returned to the beach.
99. The appellant said he started to trace the stars on the complainant.  He asked the complainant whether she was sure she wanted him to do this to her.  She said yes and kissed him.  He told her to bend over a log so that he could get the skin tight and firm.  He superficially cut the skin, not into the flesh.  When he had finished the complainant asked him to take a photo.  She wanted it sent to her ex-partner.  He said no.
100. The appellant denied making cuts to the complainant’s face.  He looked around one time and saw the complainant had a knife.  He saw blood.  The complainant said she wanted a cat scratch.  He told her to give him the knife and not be silly, that she was drunk.  He tried to get the knife but the complainant kept moving backwards.  The appellant said, “if you’re going to make a mess of yourself, I’ll help you”.  He said it took only a few seconds, it was a neat line.^[23]
101. The appellant said that on 24 December 2014 the complainant went to hospital and was fitted with a halo at its orthopaedics unit.  He received a call from the duty nurse.  He asked the complainant what had happened.  She told him she had slipped on The Esplanade the previous evening.  She asked him to go and check her bank balance at the ATM.  She gave him the PIN number.
102. The appellant said when he returned to the hospital the complainant asked him about staying with him and his partner, Natasha.  He left and returned to the hospital with Natasha.  Whilst they were talking, the complainant said she wanted to be discharged.  She insisted even though the nurses said she should remain in hospital.  The three of them then returned to the appellant’s unit.
103. The next day, Christmas day, all three of them went to the appellant’s sister’s house.  Photographs were taken of them on Christmas evening.  On Boxing Day, they had drinks together in the unit.  Photographs were again taken of them dancing next to the appellant’s niece.  The next few days were average but on the morning of 28 December the complainant suffered a complication with her halo.  She asked the appellant to help tie it up.  He refused because it might make it worse.  The complainant then walked to the hospital.  She was in hospital for two days.
104. The appellant visited the complainant in hospital.  She was in good spirits.  Whilst there he spoke briefly to the complainant’s father.  The father asked the complainant if she had a place to stay.  The complainant said she was fine, she was staying with the appellant.  The appellant and the complainant later left the hospital and returned to his unit by taxi.  They stayed there together on the night of 30 December 2014.
105. That evening, the appellant heard the complainant talking to his partner about self-harm slashes.^[24]  He told his partner not to worry about it.  He said the complainant was just an attention seeker.  When he returned, the complainant was still talking about the slash.  He said “if you want to do it here’s a knife”.  He rolled a knife onto the table.  It was a kind of reverse psychology.  He denied touching the complainant with the knife or any lighter.
106. The appellant said after this conversation, he asked the complainant to leave the unit.  The complainant tried to return the next morning.  She was not let in.  He later received telephone calls and text messages from the complainant.  He did not respond.  This was on New Year’s Eve.  That evening he answered the phone.  He asked the complainant to write a letter for him about an occasion when he had been charged with being in charge of a motor vehicle whilst under the influence of alcohol.  The complainant agreed to write a letter.  The complainant asked him to come and see her at her father’s house.  He refused.  The complainant then refused to write the letter.
107. The appellant said the only time he had the complainant’s key card was on 24 December 2014, at her request.  He did not have anything else to do with her finances.  He agreed he had gone to the bank with her on occasions.  On one occasion, the complainant told him money had been drawn out of her bank.  The complainant said she knew it was her ex-partner, Adam.  She wanted a lift to his place so she could punch Adam’s head.
108. The appellant denied having anything to do with the complainant’s Centrelink benefits.  He had taken her to Centrelink on one occasion.  Initially, the complainant went in by herself.  After she had taken some time, he went in to Centrelink.  The complainant told him she had forgotten her password.  He told her to set a new one, using something she would not easily forget.  She said she would use Star.  He thought that was on 22 December 2014.  That was the night they drove from The Esplanade to sleep on the even surface at the Glenoma Park.  They did so as the complainant had aggravated her vertebrae.
109. In cross-examination, the appellant said he always treated the complainant in a caring way throughout the course of their relationship.  That was his nature.  He denied he was a violent and controlling menace during the relationship.  He denied he approached the complainant for sex prior to the commencement of the relationship.  He agreed he was in a relationship with a Natasha Richardson when he commenced his relationship with the complainant.  He kept that relationship secret from Natasha.  That was why he was going to public places with the complainant to have sex.
110. The appellant agreed that during this period he would disappear from Natasha for days at a time.  He told Natasha he was going camping and things like that.  He agreed that during this period he was lying to Natasha.  He denied he kept the complainant with him at all times and would not let her go.  He accepted the complainant stayed with him in the car the whole time between 12 and 30 December.
111. The appellant denied that shortly after commencing the relationship with the complainant he took control of her bank account.  He denied that he changed her pin number.  He denied taking control of her Centrelink account.  He denied only giving the complainant money when he felt like it.  It was nonsense that she had to grovel and plead with him for money to buy everyday things.
112. The appellant accepted he did get angry with the complainant one day when they were on The Esplanade.  He was embarrassed by her actions in asking for cigarettes from others.  The appellant denied ever punching the complainant in the stomach after she had told him she might be pregnant.  He denied holding a knife to her throat.  He denied ever cutting her clothes off with a knife.  He denied dragging her along the ground and making her stand outside his utility naked for a period of time.
113. The appellant accepted he kept knives in his utility.  They are “essential tools”.^[25]  He denied ever telling the complainant to take her clothes off and swim out to the islands whilst they were at Ellis Beach.  He accepted she went for a swim for about 20 minutes, and that she was completely naked.  He denied she complained of being cold when she returned from the swim.  He denied putting the fire out by throwing it on the complainant.  He had already put out the fire.  He denied pouring a can of petrol over her head.  They slept together that night with no altercation between them.
114. The appellant agreed he stayed with the complainant at the Rainbow Inn on 12 December 2014.  The complainant started drinking once they got there.  He only started drinking that evening.  He agreed he got drunk that night.  He denied the complainant was socialising with other people at the motel that afternoon and that he became angry that she was talking to other people.  He denied headbutting her causing her nose to bleed.
115. The appellant accepted that on the afternoon of the next day he was spoken to by police.  The complainant was spoken to separately by police.  He denied becoming angry with the complainant after police left the motel.  He denied headbutting and punching her in the face.  He denied she fell unconscious onto the bed.
116. The appellant accepted he made both of the videos of the complainant on his phone whilst at the Rainbow Inn.  He accepted those videos revealed the complainant had a number of injuries.  They were old injuries.  She had them before they went to the Rainbow Inn.  He did not see her get those injuries.  He agreed the complainant was with him all the time from 12 December 2014.  When it was put to the appellant that in the video where he was shown as urinating over her, there was fresh blood in one of the complainant’s nostrils, the appellant replied “that wasn’t from me”.^[26]  The blood was from what was going on at the time.  They were participating in S & M, S for slave and M for master.  The complainant was the slave.  The appellant was the master.
117. The appellant agreed he did not have a clear recollection of what had happened that night or as to how the injuries may have occurred at that time.  They could have occurred from the complainant tripping over as she frequently did.  They were not from him assaulting her.  The injuries could have been caused from the S & M.  He may have punched her in the face in a loving way at her request.
118. The appellant denied the complainant was unconscious when he urinated all over her.  The complainant requested he do that to her.  The appellant agreed there were parts of the video where the complainant was saying no and stop but said the video “can be misconceptions”.^[27]  Only two people know what is going on in the room.  He agreed at one point the complainant was recorded as questioning why he was filming it.  He said that was part of her instructions prior to the recording.  He denied he enjoyed assaulting and hurting the complainant.  The appellant agreed that in the video the complainant was shown covered in bruises.  He accepted he caused some of those but not intentionally.
119. The complainant consented to him making a video of her when she was naked, including of her vagina.  She instructed this as part of the role play.  Any assault on the video was part of this ongoing game.  The appellant said he did not tie the complainant to the chair or tie her up in a way in which she could not move.  The complainant was able to untie herself.  The rope was free around her body.  He agreed the rope shown on the video was around the complainant’s neck and knee.  Whilst the rope was around her hands tied at the back, the complainant was just holding her hands like that.  Her hands were not tied at the back.
120. The appellant did not accept it was his idea to cut the star into the complainant’s buttocks.  He denied the complainant told him not to do it.  He agreed he sharpened his knife before cutting the star.  The appellant said the complainant sharpened the knife but he was not satisfied so he touched it up further to make it even sharper.  He agreed he told the complainant to “lean up against that log”.  He denied telling her not to make a sound.  He denied threatening her in any way.  It took less than an hour to cut the two stars.  He denied rubbing sand into the area after he finished cutting the complainant.  He accepted taking a photograph of it but said that was at the complainant’s request.  She wanted to see the finished product.  The complainant also wanted to send it to her ex-boyfriend.
121. The appellant said that the cut to the complainant’s face occurred on the same day.  It was a couple of hours later.  The complainant said “I want a cat scratch” and started to cut her own face.  He offered to assist her.  He did two and a half cuts.  He denied he cut her because he thought it would look good on her and he wanted to mark her.  He accepted he made comments sometime later at the beach that it “kind of suit her”.^[28]
122. The appellant accepted that on 23 December 2014 police and ambulance arrived at Glenoma Park where he and the complainant were parked in his utility.  Police searched his utility and found some knives.  The appellant denied staying at the hospital with the complainant so as to ensure she did not tell anybody what was happening to her.  The appellant denied he encouraged the complainant to discharge herself from hospital.  He denied making her walk back to the hospital on 28 December 2014.  The complainant suggested walking back because he was not supporting her irresponsible behaviour.
123. The appellant accepted the complainant had slash marks on her arm.  He was the first to see the marks.  The first mark had been done by the complainant after he had refused to support her and she had lied to him again.  The complainant said she did this as it would help release her pain as she was feeling guilty about lying to the appellant.^[29]  The appellant told the complainant she should not have done that as it did not look good for her if she was seeking custody of her daughter.
124. The appellant agreed that when the complainant was showing his partner those marks, he talked about it being attention seeking behaviour.  The complainant needs some kind remarks from other people.  The appellant accepted he said “here do it properly” and slid a knife across the table to the complainant.  He did not mean it.^[30]  He denied he held the knife against the complainant’s arm.  The appellant did not touch the complainant.  He remained seated in the living room.  He rolled the knife on the coffee table.  He denied picking up a lighter and pushing it into the complainant’s eyes.  He was asleep when the complainant left the unit.  The video of the complainant dancing was taken on his partner’s phone.  His partner then sent it to his telephone.

Appellant’s girlfriend

125. The appellant’s girlfriend, Natasha Richardson gave evidence she had known the appellant for approximately five years.  He was her boyfriend.  They moved in together after dating for a couple of months.  Richardson agreed the appellant was disappearing for periods of time in the period November/December 2014.  On one occasion, he said he was camping with friends.  In January 2015, the appellant told her he had never slept with or assaulted the complainant.
126. Richardson met the complainant through the complainant’s ex-boyfriend and the appellant.  At the end of 2014, she saw the complainant a couple of times.  She also visited the complainant in hospital.  The complainant had a halo on her head.  The complainant asked the nurse if she could discharge herself and stay with them.  The complainant discharged herself and returned back to their home.
127. Richardson said the complainant was with them on Christmas Day when they went to the appellant’s sister’s home.  The complainant was staying with them at that time.  The complainant stayed about five nights all up in their unit.  The last night was New Year’s Eve or the day before that.  They asked the complainant to leave the unit.  The complainant returned the next morning at about 6.00 and said she wanted to stay.  She was told she had to go.
128. Richardson said the night before they asked her to leave, Richardson asked the complainant about cuts on her arm.  The complainant said they were from suicide attempts.  Richardson asked her to get some help.  She called a taxi and the complainant left the unit.  The appellant was asleep at this time.  Richardson did not recall any fights or altercations between the appellant and the complainant.  She did not see any incident involving a lighter or knives.  The appellant was worried about the complainant because she was on medication.

Appellant’s submissions

129. The appellant’s primary submission was that the complainant’s evidence was untruthful.  The relationship was not a controlling or violent relationship.  He did not commit any of the offences.  Whilst the videos were recorded by him, the events they contained were done expressly at the complainant’s request and with her consent, including the recording of those events.  The stars he cut on the complainant’s buttocks were at her request and only amounted to a superficial cut which did not constitute grievous bodily harm.
130. The appellant submitted the complainant’s conduct throughout the relationship was entirely inconsistent with an acceptance of her evidence as truthful.  There was contact with police and ambulance officers on a number of occasions throughout the relationship.  The complainant had a prime opportunity to complain to the authorities.  She did not do so on any occasion.  Further, the complainant continued to contact the appellant on multiple occasions after the last of the alleged offences.  She only made allegations to police after the appellant ended their affair.
131. Finally, the appellant submitted relevant witnesses were not called at trial and his acquittal on some counts could only be consistent with the jury not accepting the complainant as reliable and credible.

Respondent’s submissions

132. The respondent submitted the jury’s verdicts were amply supported by a consideration of the evidence as a whole.  That evidence supported a conclusion that the appellant committed the various offences for which he was convicted in the course of a violent and controlling sexual relationship and with the intention of inflicting severe pain.
133. The evidence of violence within the relationship was not dependent on an acceptance of the complainant’s evidence alone.  The appellant’s own evidence accepted the factual basis for a number of the offences.  His claim that they were consensual acts instigated by the complainant was a matter to be properly considered by the jury.  It was open to the jury on the whole of the evidence to reject that evidence and to accept the complainant’s evidence that at no stage did she consent to any of those acts.  There was independent support for the complainant’s accounts in a number of respects, including the video recordings of the episode at the Rainbow Inn and photographs of the injuries inflicted on the complainant’s buttocks and face.
134. The respondent submitted there was no inconsistency in the jury finding the appellant not guilty of counts 2, 4, 5 and 14.  Those acquittals were consistent with the jury accepting the complainant’s account of the relationship but only being satisfied beyond reasonable doubt of the individual offences where those offences were supported by other independent evidence.  Each of those counts was not supported by other independent evidence.
135. Finally, the respondent submitted it was a matter for the jury having been properly directed as to the relevant law, whether the complainant’s failure to complain at relevant times or to leave and her admissions in relation to issues as to memory, the abuse of alcohol and drugs and of having previously fabricated accounts of abuse in respect of a former partner caused the jury to have a reasonable doubt.  Notwithstanding a consideration of those matters, the evidence as a whole amply supported the jury’s findings of guilty on counts 1, 3, 6, 7, 8, 9, 10, 11, 12 and 13.

Discussion

Unreasonable verdict

136. The principles to be applied in determining whether a verdict is unreasonable or cannot be supported having regard to the evidence were recently restated in R v Clapham:^[31]

“The principles to be applied in determining whether a verdict of a jury is unreasonable, or cannot be supported having regard to the evidence, are collected in SKA v The Queen. The question is not whether there is as a matter of law evidence to support the verdict. Even if there is evidence upon which a jury might convict, the conviction must be set aside if “it would be dangerous in all the circumstances to allow the verdict of guilty to stand”. The Court is required to make an independent assessment of the sufficiency and quality of the evidence at trial and decide whether, upon the whole of the evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence of which he was convicted. In considering this ground of appeal the “starting point … is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses”, but:

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.”

In R v Baden-Clay the High Court emphasised that the jury is “the constitutional tribunal for deciding issues of fact”and observed that, “the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ … is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial”, “a court of criminal appeal is not to substitute trial by an appeal court for trial by jury”, and “the ultimate question for the appeal court ‘must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.” (Footnotes omitted)

137. In the present case, there were aspects of the complainant’s evidence which called into question her reliability.  The complainant had numerous opportunities, during the course of the relationship with the appellant, to complain to members of the police force, emergency services officers and medical practitioners as to the conduct being engaged in by the appellant.
138. Having regard to the existence of the video evidence, it was reasonably open to the jury to reject the appellant’s account of his relationship with the complainant and the circumstances of the infliction of those injuries.  Once the jury rejected that account, it was a matter for the jury to consider whether the complainant’s failure to complain at relevant times or to leave was sufficient to cast doubt on the reliability and credibility of her evidence.
139. It was also a matter for the jury to assess the significance of the complainant’s admissions as to the abuse of alcohol and drugs, of previous lies in relation to a former relationship, and of deficiencies in her memory.  The jury was directed that they were matters properly to have regard to in assessing the reliability and credibility of the complainant’s evidence.
140. There was support for the substance of the complainant’s evidence from independent sources.  Of primary significance was the content of the videos recovered by police.  A review of those videos provided strong support for the complainant’s evidence that the acts depicted in those videos were engaged in without her consent.  The complainant is depicted as saying "no” and “stop”.  The appellant in evidence accepted that the videos revealed the complainant had a number of injuries, including fresh blood in one of her nostrils.  The appellant accepted he had recorded the video.
141. There was also photographic evidence consistent with injuries inflicted on the complainant’s buttocks and face, supportive of the complainant’s account.  The appellant admitted inflicting the injury to the complainant’s buttocks but said he did so with her consent.  He also admitted cutting the complainant’s face, but said he did so after she had commenced cutting her own face.
142. A consideration of the evidence as a whole supports a conclusion that there was ample evidence upon which it was reasonably open to the jury, upon the whole of the evidence, to be satisfied beyond reasonable doubt that the appellant was guilty of the offences of which he was convicted.
143. The complainant gave evidence of a sustained course of conduct of acts of violence over a number of weeks.  Those acts of violence included the infliction of actual injury in circumstances where there was independent support by way of photographic evidence and medical evidence that during the course of the relationship the complainant had sustained lacerations and bruising consistent with her account of episodes of violence inflicted upon her by the appellant.  Whilst that evidence did not independently support the complainant’s evidence that the injuries were inflicted by the appellant, the existence of that independent evidence was supportive of the complainant’s account.
144. That evidence included direct evidence from the complainant that the appellant, on separate occasions at the Esplanade, had struck her in the face (Count 3) and in the stomach, holding a knife to her throat (Count 4).  The complainant also gave evidence of being assaulted, causing bleeding, on two occasions at the Rainbow Inn (Counts 6 and 7) and of other indignities occurring without her consent at the Rainbow Inn, which were recorded by the appellant on his mobile phone (Counts 8 and 9).
145. Whilst the appellant gave evidence that all such acts occurred with the complainant’s consent, and her protestations were part of the participation in a slave/master scenario, the contents of the video provided compelling evidence supportive of the complainant’s account that the events depicted in that video occurred without her consent as did the recording of that video.
146. The complainant also gave direct evidence of the infliction by the appellant of cuts to her buttocks (Count 10) and face (Count 11) and of assaults by the appellant in Glenoma Park (Count 12) and in the appellant’s unit (Count 13).
147. The complainant did not resile from her evidence of each of those offences in her cross-examination, which occurred over an extended period.  That evidence, if accepted also supported the count of torture (Count 1).
148. The inconsistencies in the complainant’s account, the failures to report those activities contemporaneously when spoken to by police and emergency services officers and the admissions as to excessive alcohol intake and deficiencies in memory were not of themselves sufficient to cast such a doubt on the reliability and credibility of the complainant’s account as to render those verdicts unreasonable.
149. The existence of independent evidence providing cogent support for the reliability and credibility of the complainant’s account amply supported findings of guilt in relation to the counts the subject of the events at the Rainbow Inn.  Once the complainant’s account of that episode was accepted, the existence of independent support for the infliction of other injuries, including the branding of her buttocks and the slashing of her face, rendered it reasonably open to the jury to convict the appellant of those counts.  That conclusion left it reasonably open to the jury to accept the complainant’s evidence on the remaining counts the subject of verdicts of guilty.
150. The verdicts of not guilty in respect of Counts 2, 5 and 14 did not mean the jury must have had a reasonable doubt as to the reliability of the complainant’s evidence generally.  Those verdicts were explicable as there was no independent evidence to support the complainant’s assertion that the appellant placed a belt around her neck (Count 2), caused a minor cut to her throat with a knife (Count 4), poured petrol over her (Count 5) or pushed a lighter into her eye (Count 14).  Such events were likely to result in visible injury.  As there was no independent evidence of the existence of such injuries, the appellant was properly given the benefit of a reasonable doubt as to the commission of those offences by the jury.
151. The verdicts of the jury were not unreasonable.

Inconsistent verdicts

152. The fact that a jury finds an accused person guilty of some counts but not guilty of others, in circumstances where all counts relied upon the reliability and credibility of a complainant, does not of itself give rise to an inconsistency justifying the intervention of an appellate court.  The relevant principles were summarised in R v GAW:^[32]

“… Where alleged inconsistency arises in the jury verdicts upon different counts affecting an accused, the test is one of “logic and reasonableness”; that is, whether the party alleging inconsistency has satisfied the court that the verdicts cannot stand together because “no reasonable jury, who had applied their mind properly to the facts in the case could have arrived” at them.

However, respect for the jury’s function results in a reluctance in appellate courts accepting a submission that verdicts are inconsistent in the relevant sense, so that:

“... if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.”

In that regard, “the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt”. Alternatively, the appellate court may conclude that the jury took a merciful view of the facts on one count; a function which has always been open to a jury.

It is only where the inconsistency rises to the point that the appellate court considers intervention is necessary to prevent possible injustice that the relevant conviction will be set aside. While it is impossible to state hard and fast rules, the following provide examples of relevant inconsistency; where the different verdicts returned by the jury are an affront to logic and common sense which is unacceptable, and strongly suggests a compromise in the performance of the jury’s duty, or which suggests confusion in the minds of the jury, or a misunderstanding of their function, or uncertainty about the legal difference between specific offences, or a lack of clarity in the instruction on the applicable law.

In R v CX, Jerrard JA, referring to Osland v The Queen, stated:

‘Verdicts of guilty and of acquittal will show the required inconsistency where a verdict of acquittal necessarily demonstrates that the jury did not accept evidence which they had to accept before they could bring in the verdict or verdicts of guilty which they did; or when it follows that when acquitting on a particular count, the jury must have accepted evidence that required them to acquit on a count or counts on which they convicted the defendant.’”

153. No inconsistency justifying intervention arises in the present case.  The counts in respect of which verdicts of not guilty were entered were not supported by other evidence from independent witnesses.  There was no such evidence of injury consistent with an act of choking (Count 2), of a cut to the throat (Count 4), of petrol having been poured on the complainant’s skin (Count 5), or of an injury to the eye consistent with the pushing of a lighter into the eye (Count 14).
154. By contrast, the counts the appellant was found guilty of related to events which were supported either by independent evidence or admissions by the appellant with the issue in dispute being whether those events occurred without the complainant’s consent.  On that aspect, the contents of the video provided compelling and cogent evidence supportive of the complainant’s account.
155. The not guilty verdicts were logically consistent in those circumstances.  The jury, in accordance with the directions provided to them, separately considered the case presented in respect of each count and, applying to each count the requirement that all ingredients must be proved beyond reasonable doubt^[33], entered verdicts of guilty where there was independent evidence supportive of the complainant’s account but entered verdicts of not guilty where there was no such evidence.
156. The verdicts of the jury were not inconsistent.

Section 24

157. At trial, the appellant’s Counsel raised with the trial judge the giving of a direction in respect of s 24 of the Criminal Code.  The trial judge declined to do so, noting that the appellant had given no evidence consistent with the raising of any issue of a mistake of fact.  The appellant’s evidence was that the incident at the Rainbow Inn the subject of the video recording, the branding of the complainant’s buttocks and the cutting of her face all occurred at the complainant’s express request and with her consent.
158. In submissions at trial, the appellant’s Counsel accepted the appellant had not in his evidence raised such a proposition.  The appellant’s Counsel accepted that if the jury accepted the complainant had invited the respective activities the appellant could not be held responsible.^[34]  Whilst the appellant’s legal representative’s concession would not absolve the trial judge from an obligation to direct in respect of s 24 in an appropriate case, the obligation to give such a direction only arises if the issue of a mistake of fact was raised by the evidence.
159. The trial judge correctly concluded it was not raised on the evidence given at trial.  The complainant’s evidence was that she at no stage gave consent for the acts of violence or for the sexual assault which was the subject of the video recording.  Nothing in the complainant’s evidence supported a conclusion that there were aspects of her conduct which may have given rise to a suggestion she was consenting to those acts.  Further, nothing in the appellant’s evidence raised a basis to conclude the appellant was reasonably mistaken as to the giving of such consent.  The appellant’s evidence was that the complainant expressly requested he undertake those acts and thereby consented to those acts.
160. In those circumstances, the issue for the jury was whether the acts had occurred with the consent of the complainant.  If the jury accepted the complainant had given no such consent, there was no evidential basis for a consideration of whether the appellant was in the mistaken belief that consent had been given by the complainant.
161. The trial judge properly declined to give a direction in respect of s 24 of the Criminal Code.  Further, the failure to give that direction has not given rise to any miscarriage of justice.  There is no basis to conclude the failure to so direct the jury has given rise to a significant risk an innocent person has been wrongly convicted of these offences.
162. This ground of appeal also fails.

Conclusions

163. No basis has been established to set aside the verdicts of guilty.

Orders

164. I would order that the appeal be dismissed.