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R v Toweel QCA 303
SUPREME COURT OF QUEENSLAND
R v Toweel  QCA 303
TOWEEL, Jared Luke
CA No 92 of 2019
DC No 293 of 2018
Court of Appeal
Appeal against Conviction
District Court at Brisbane – Date of Conviction: 20 March 2019 (Jones DCJ)
20 December 2019
17 September 2019
Fraser and Philippides and McMurdo JJA
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of strangulation and one count of assault against a person with whom he was in a domestic relationship – where the prosecution’s case relied heavily on the complainant’s evidence – where a friend of the complainant gave evidence that she saw bruising and redness on the complainant’s neck, but an attending doctor and a police officer did not record the same – where the complainant’s evidence at trial differed in some aspects from her statements to police – whether the verdicts were unreasonable
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – OTHER CASES – where the appellant was convicted of one count of strangulation and one count of assault against a person with whom he was in a domestic relationship – where the complainant, upon a voir dire, described several prior incidents of domestic violence against the complainant by the appellant – where several of those incidents were admitted under s 132B of the Evidence Act 1977 (Qld) – where other incidents were excluded on several bases, including that they lacked clarity and were insufficiently probative – where the jury was directed not to use the prior incidents as evidence demonstrating a propensity to commit the alleged offences – whether the evidence of prior incidents was relevant, at least to establish that the alleged offending did not occur “out of the blue” – whether there was a miscarriage of justice by admitting evidence of the prior incidents
Evidence Act 1977 (Qld), s 130, s 132B
Roach v The Queen (2011) 242 CLR 610;  HCA 12, considered
The appellant appeared on his own behalf
J A Wooldridge for the respondent
The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
- FRASER JA: I agree with the reasons for judgment of McMurdo JA and the order proposed by his Honour.
- PHILIPPIDES JA: I agree with McMurdo JA.
- McMURDO JA: The appellant was charged with two offences, committed on the same day against a woman with whom he was in a domestic relationship. He was alleged to have unlawfully strangled her, and by the other charge, unlawfully assaulted her. After a trial, the jury convicted him on both counts. He appeals against each conviction upon the ground that the trial judge wrongly allowed evidence of prior acts of domestic violence, by him against her, to be admitted into evidence. He also appeals against the conviction on the charge of strangulation, upon the ground that the verdict was unreasonable.
The evidence at the trial
- The complainant gave the following evidence. The appellant and the complainant were in a relationship, punctuated by periods of separation, over a period of approximately 12 months, until February 2013. In March 2013, a child was born from that relationship. About two years later, the relationship resumed and continued, again with intervals of separation, until February 2017, shortly before these offences were committed. By this time, the complainant was five weeks pregnant to the appellant, as he was aware. On the day in question, the appellant, the complainant and their son had spent the day together. That evening, the appellant and the complainant argued about whether their relationship should resume. The appellant became very angry, and put his forehead against the complainant’s forehead, before pushing her backwards against a wall. The complainant tried to push him away, and the appellant then put both of his hands around her throat, strangling her “really tight”, for about 15 seconds. He stopped only when their son fell from a couch. This incident was the subject of the first count.
- Count two happened almost immediately afterwards. The appellant walked away toward the back door, before turning around and coming back toward the complainant. He grabbed her around the throat with one hand and hit her with the other. She fell to the ground. She was then holding their son, when the appellant grabbed the complainant’s hair and repeatedly said “bitch”. The appellant took the complainant’s phone from her, and pulled it apart.
- The complainant rejected the defence case, as put to her in cross-examination, that there was no violence associated with any argument which the couple may have then had, and that he did not choke or strike her.
- After these events, the complainant went to the house of a friend, Ms Adams, and the police were called. The complainant told police that the appellant had put his hands around her neck and choked her, and that he then gave her a blow to the face, which knocked her to the ground, before he lifted her up by the neck and threw her down again. In cross-examination, the complainant appeared to accept that there were differences between that account and her evidence-in-chief, although she did not remember what, on that evening, a police officer had recorded her as saying.
- The police officer gave evidence that he looked for any injuries to the complainant, and would have asked her whether she had any injuries, but did not record that there were any.
- Ms Adams gave evidence that the complainant did have marks to her neck and swelling to her cheek.
- On the following day, the complainant saw a doctor, who testified that, according to her records, there was some mild tenderness on the front of the complainant’s neck, but no visible bruising, swelling or redness, and that the neck and throat were otherwise “normal”. She noted no injuries to the complainant’s face.
- The other relevant evidence came from the complainant about previous incidents of domestic violence. There were five such incidents, going back to July 2012.
- In the first of them, the couple argued as he drove her home from visiting a friend, when he yelled at her and called her a bitch. When the car was stopped at a traffic light, the complainant left the car and started walking away. He persuaded her to get back into the car, where they continued to argue. At one point, he sharply changed direction, saying that he was not going to take her home. When she asked him if he thought he could keep her in the car against her will, he kissed his biceps and said, “with these babies, I can.”
- The second incident happened in the same month. The complainant had a small dog, which the appellant took from her home and put in his car, telling her that he was going to break the dog’s neck and throw it off a bridge and kill it. He returned the dog when she threatened to call police. In the same incident, he bashed in the door to her house, and then entered the unit and pinned her against a door for a few seconds. When cross-examined about this incident, the complainant conceded that she had not said anything in her signed police statement, about being pinned against a door or wall.
- The third incident was said to have occurred in August 2013. During an argument, he lunged towards her with a clinched fist and threatened her with the words, “I will crush your face”.
- The fourth incident occurred about four months before the events the subject of the charges. At about 3.30 am, the appellant arrived at the complainant’s home and started banging on the door, accusing her of having someone there with her. She asked him to leave, but he refused. She said that she would call the police. The appellant bashed the door in and broke into the unit, turning on the light. The appellant then started crying, and he left when she asked him to do so.
- The fifth incident was said to have occurred two weeks before the charged events. The appellant went to the complainant’s unit, and in the course of a discussion, was told by the complainant that she wanted to end their relationship. He became angry and yelled at her. She asked him to leave, but he pinned her against the wall in the garage for about five seconds. The complainant called the police. She said that she managed to secure herself, by using the remote for the garage door, to close the door between the two of them. As it was closing, he tried to whip her legs using his shirt.
- In cross-examination, she agreed that on none of these earlier occasions had he choked her, attempted to put his forearm across her throat, or punched her or given her a back-hander.
- The appellant did not give or call evidence.
An unreasonable verdict
- The notice of appeal stated only one ground, which was that the judge wrongly admitted evidence of previous incidents of domestic violence. However the appellant’s outline of argument also contends that the verdict on the first count was unreasonable. The appellant is without legal representation, and counsel for the respondent fairly conceded that the written submissions might be read as a challenge to both verdicts. The appellant did not make oral submissions, and what follows is a discussion of his outline of argument.
- The argument is that there was no “physical evidence” to indicate that the strangulation incident happened, meaning that there was no injury, or any sign of an injury, to the complainant. He submits that the jury could not have been satisfied by the evidence of Ms Adams, that she had seen bruises and redness to the complainant’s neck and face, when that evidence was put against the evidence of the doctor and the police officer. In cross-examination, the appellant points out, the complainant admitted that the blow to her face caused no physical injury, and as to the strangulation, the complainant said that she had not had time to look at her neck immediately after the incident, and agreed that “it wasn’t red the next day”.
- The argument refers to the tension, between the complainant’s evidence that she had been strangled with both hands around her neck, restricting her breathing, and the evidence given by the doctor that, on her notes, nothing had been said by the complainant to her to the effect that she had been held around the throat to a point where she could not breathe.
- The argument also points to an inconsistency between the complainant’s statement to police, that she had been lifted up by the neck and thrown down again, and her testimony, in cross-examination, that she did not recall being lifted from the floor by her neck.
- The appellant’s argument also addresses what are said to be contradictions in the complainant’s testimony as to the prior incidents. On the question of whether the verdicts were unreasonable, this evidence is of doubtful relevance. The proof of those prior events was not a necessary step in the prosecution case.
- As to the second of those prior incidents, as I have noted, there was nothing in her statement given to police in 2013 concerning that incident, about being pinned by the forearm across the chest. In cross-examination, the complainant rejected the suggestion that she had simply “thrown that in in relation to this trial just to make things more difficult for [the appellant]”.
- The appellant suggests that there was an inconsistency between the complainant’s statement to police in 2013 and another statement, which was given in 2019. The two statements were marked for identification, in a voir dire which concerned whether evidence of the prior events should be excluded. But what must be considered, for this ground of appeal, is the evidence which was put before the jury. Except in the case of the reference to her 2013 statement, to which I have referred in the previous paragraph, the jury did not hear about what was in either of those statements. The point sought to be made by this comparison of the statements cannot assist the appellant to establish this ground of appeal.
- The appellant’s submissions refer to evidence given by the complainant, not before the jury, but upon the voir dire, in relation to the prior incidents. Again, that evidence is irrelevant to the present ground of appeal.
- The appellant’s submissions seek to make something of discussions between the trial judge and the prosecutor, after the jury had retired. Again, those discussions were in the absence of the jury, and are irrelevant to this ground of appeal.
- Returning to the evidence which was before the jury, whilst it is true that the evidence of Ms Adams provided the strongest support for the complainant’s evidence, it was not the only testimony which did so. The doctor did record in her notes that there was tenderness to the complainant’s front neck area. The absence of a visible external injury, on the day after the incident, was relevant. But it did not require the jury to doubt that the incident, as the complainant had related it, had taken place.
- This was not an especially strong prosecution case. It relied heavily, although not entirely, upon the complainant’s evidence. That evidence was not perfectly consistent with what the police officer had been told on that evening. But to the extent that there were inconsistencies, they were not such as to require the jury to doubt whether either of these offences was committed. Clearly, this Court must have particular regard to the advantage enjoyed by the jury, in having seen and heard the evidence of the witnesses, including the complainant. It was open to the jury to be satisfied, beyond reasonable doubt, of the appellant’s guilt of each offence. The first ground of appeal fails.
Evidence of previous events
- The evidence, which has been summarised above at -, was admitted under s 132B(2) of the Evidence Act 1977 (Qld), which provides as follows:
“Relevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence was committed is admissible in evidence in the proceeding.”
- Section 132B applies to a criminal proceeding against a person for an offence defined in the Criminal Code, chapters 28 to 30 (in which the present offences are included). There was and is no issue that the appellant and the complainant were in a domestic relationship within the meaning of s 132B. The appellant’s outline of argument does not challenge the admissibility of the evidence under s 132B. In particular, it does not contend that the evidence was irrelevant. The argument made in the outline is, in substance, that made to the trial judge, namely that the evidence, although admissible, should have been excluded under s 130 of the Evidence Act, which expressly preserves the power of a court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit it.
- The prosecution did not disclose an intention to lead this evidence until shortly before its case was opened. Although that fact features in the appellant’s outline, it could be relevant only if it is said that it caused, or contributed to, a miscarriage of justice. Between the prosecutor’s opening and the evidence of the complainant, there was a substantial argument, upon the voir dire, as to what evidence of this kind should be admitted, and in that hearing, the complainant was extensively cross-examined. No application was made for the adjournment of the trial. The lateness of the introduction of this part of the prosecution case is not shown to be relevant to the ground of appeal.
- This Court has not only the appellant’s outline of argument on the question, but also the transcript of the oral submissions, as well as the written submissions made by the appellant’s trial counsel. The judge gave a careful ruling, in which he permitted some, but not all, of the proposed evidence to be adduced. The trial judge observed, correctly, that he was required to balance the probative value of the evidence against its prejudicial impact. He said that there could be “no doubt that the evidence is of a very prejudicial character.” He referred to Roach v The Queen, and the decision of this Court in R v Susec. Some evidence was ruled out by his Honour because it was too remote in time from the present offences to have sufficient relevance. Other evidence was excluded upon the basis that it lacked clarity. Evidence of abusive phone calls and text messages was excluded, because it was not sufficiently probative, the conduct not involving any actual violence.
- Although the trial judge’s ruling must be considered, the present question is not whether his Honour made an error in the exercise of the discretion under s 130; it is whether admission of the evidence resulted in a miscarriage of justice.
- In the prosecutor’s address to the jury, the unhappy history of this relationship was emphasised. The prosecutor said this:
“The evidence is before you so that what happened on the 23rd of February 2017 is not in a vacuum. It’s not one little island; it’s part of a chain of islands that form the land mass that are the archipelago of the relationship, and it spans quite some time, from the middle of 2012 all the way to February 2017. And we’re not talking about one event beforehand, we’re talking about repeated acts, and conduct which was aggressive towards her physically. She described three occasions where he put his forearm against her chest and pinned her, restrained her. What sort of relationship dynamic is this where you deal with a conflict with the mother of your child in that way? And so it can became normalised; its just the way how things roll in the relationship.
So when you come to consider those charges on the indictment … as I’ve mentioned, it’s not in isolation; this is part of a continuum and it puts the relationship in that context. And this is someone who, on her evidence … had been a victim of violence from the defendant on a number of occasions, and that violence had also included elements of control.
… [W]hen you assess that evidence, you would bring to bear the context of their relationship and the evidence that she’s given about that context, and, therefore, the defendant putting his hands around the complainant’s throat becomes an explicable escalation of that violence.”
- In Roach v The Queen, the appellant was convicted of an offence of an assault, occasioning actual bodily harm, against a woman with whom he was in a domestic relationship. The trial judge allowed evidence of other assaults by the appellant on that complainant to be given on the basis that, without it, the jury would be faced with a seemingly inexplicable or fanciful incident. The jury was directed that they were not to use the evidence as demonstrating a propensity to injure the complainant, and the prosecution disavowed reliance on the evidence for that purpose. This Court dismissed an appeal against the conviction, rejecting an argument that the rule in Pfennig v The Queen applied to the admissibility of the evidence under s 132B. This Court said that the evidence was properly characterised as propensity evidence, and held it to be relevant and admissible on that basis. The High Court dismissed an appeal against that judgment, rejecting an argument that the rule in Pfennig v The Queen could be imported, if not into s 132B, then into s 130. However the High Court had a different view of the relevance of the evidence. In the judgment of French CJ, Hayne, Crennan and Kiefel JJ, this was said:
“The purpose of the evidence in Pfennig may be contrasted with that for which the evidence in question was tendered in the present case. Here the complainant gave direct evidence both of the alleged offence and of the “relationship” evidence. The latter evidence, which included evidence of other assaults, was tendered to explain the circumstance of the offence charged. It was tendered so that she could give a full account and so that her statement of the appellant’s conduct on the day of the offence would not appear “out of the blue” to the jury and inexplicable on that account, which may readily occur where there is only one charge. It allowed the prosecution, and the complainant, to meet a question which would naturally arise in the minds of the jury.
It is difficult to resist the conclusion that it was intended, by the insertion of s 132B, that persons suffering from domestic violence not be disadvantaged in the giving of their evidence and that they be able to tell their story comprehensively. It may be taken to express a perception that it is in the public interest that they be able to do so and that the prosecution of offences which involve a history of domestic violence be thereby enabled. The reception of the evidence operates more fairly to a complainant. Unfairness to the accused, by its reception, is to be considered by reference to s 130.
In the present case the evidence, if accepted, was capable of showing that the relationship between the appellant and the complainant was a violent one, punctuated as it was with acts of violence on the part of the appellant when affected by alcohol. Without this inference being drawn, the jury would most likely have misunderstood the complainant’s account of the alleged offence and what was said by the appellant and the complainant in the course of it. To an extent Holmes JA acknowledged this in the conclusions to her reasons. Whilst her Honour identified the relevance of the evidence as showing the particular propensity of the appellant, she also concluded that it made the appellant’s conduct in relation to the alleged offence intelligible and not out of the blue.”
- In the present case, the evidence of prior events was relevant, at least to establish that the alleged offending did not occur “out of the blue”, by showing the nature of the relationship between the appellant and the complainant. The evidence was relevant on the same basis which was described by the plurality of the High Court in Roach. The question was therefore whether its probative value, in that way, justified its admission, notwithstanding its potential prejudicial effect, in that the jury might misuse it. The risk was that the jury would engage in propensity reasoning. In Roach, the plurality said:
“The importance of directions in cases where evidence may show propensity should not be underestimated. It is necessary in such a case that a trial judge give a clear and comprehensible warning about the misuse of the evidence for that purpose and explain the purpose for which it is tendered. A trial judge should identify the inferences which may be open from it or the questions which may have occurred to the jury without the evidence. …”
- In this case, the jury was directed, in clear terms, that they were not to use the evidence as demonstrating a propensity to commit offences of these kinds. The trial judge directed the jury as follows:
“Now, that evidence was put before you for one reason and one reason only; that is to provide a form of narrative or reveal the nature of the relationship of – between the complainant and the defendant, that is, that the relationship was a very volatile one and one, if you were to accept the evidence of the complainant, that involved, from time to time, acts of violence on the part of the defendant. Now, that is the sole reason that that evidence is placed before you. And before you could even accept it as being – if you like – a description or a – yes, a description of or a characterisation of the nature of the relationship between these two, you, of course, would have to accept that – accept what the complainant said as being honest and truthful evidence …
But even if you were to get to the stage where you think, “Well, look, we accept what she said about those other incidents,” it would be entirely wrong for you to then say, “Well, look, we accept what she said about those things. Therefore, it’s more likely that he’s the type of person that would actually do what he said – what she said.” So it would be wrong to work backwards. It would be wrong to look at that evidence and say, “Yes, we accept what she said about that. Well, having reached that conclusion we certainly know he’s the type of person that would commit these sorts of offences. Therefore, we consider him to be guilty.” You’re not to use the evidence in that way at all.”
- The appellant’s outline of submissions contends that there were differences between the prior incidents and those which were the subject of the charges, so that, on that basis, the evidence lacked sufficient probative value. That submission misunderstands the proper relevance of the evidence, as the trial judge explained it to the jury.
- In my conclusion, the directions to the jury avoided the misuse of this evidence, which had a probative value which justified its admission. There was no miscarriage of justice by the evidence being admitted. This ground of appeal fails.
- Therefore I would dismiss the appeal.
- One other matter, which is not relevant to a ground of appeal but which was raised by the appellant in his outline, should be mentioned. The appellant is concerned that a Domestic Violence Order was made against him, in his absence. The trial judge sentenced the appellant for these offences on 20 March 2019. On the following day, his Honour reopened the sentence and made an order, extending the duration of an existing Domestic Violence Order from two years to five years. By s 42(4) of the Domestic and Family Violence Protection Act 2012 (Qld), such an order was not to be made unless the appellant had been given a reasonable opportunity to present evidence and to prepare and make submissions about it. Counsel for the respondent informed this Court that this had not occurred, and that in the event that the appeal was dismissed, the Office of the Director of Public Prosecutions would have the matter relisted in the District Court.
On 23 February 2017.
R v Baden-Clay (2016) 258 CLR 308 at 329 ;  HCA 35 at .
Defined by s 132B(3) to mean a relevant relationship under the Domestic and Family Violence Protection Act 2012, s 13.
(2011) 242 CLR 610;  HCA 12.
 QCA 77.
(1995) 182 CLR 461;  HCA 7.
(2011) 242 CLR 610 at 624-625 -;  HCA 12 at -.
(2011) 242 CLR 610 at 625 ;  HCA 12 at .
- Published Case Name:
R v Toweel
- Shortened Case Name:
R v Toweel
 QCA 303
Fraser JA, Philippides JA, McMurdo JA
20 Dec 2019
|Event||Citation or File||Date||Notes|
|Primary Judgment||DC293/18 (No Citation)||20 Mar 2019||Date of Conviction (Jones DCJ).|
|Appeal Determined (QCA)|| QCA 303||20 Dec 2019||Appeal against conviction dismissed: Fraser and Philippides and McMurdo JJA.|