R v FBA[2021] QCA 142

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  The facts and issues in this appeal have been set out comprehensively in the reasons of Boddice J so it is unnecessary for me to recite them.  I agree with his Honour’s reasons and conclusion in relation to ground 4.  I have come to a different conclusion about ground 1.
2. [2]
   The appellant’s amended grounds of appeal were as follows:

“Ground 1, the learned trial judge erred, causing the trial to miscarry, in:

1. (a)
   failing to clearly direct the jury as to the identification, purpose, and use of relationship evidence;

2. (b)
   admitting the evidence of the complainant’s daughter that she had ‘seen bruises on mum’ as relationship evidence.

Ground 2, the complainant’s evidence required a Robinson direction and the failure to direct in those terms caused a miscarriage of justice.

Ground 3, the complainant’s evidence in chief was inaudible in parts, which in the circumstances of the trial, caused the trial to miscarry.

Ground 4, when regard is had to all the evidence, the jury verdicts are unreasonable, unsafe and unsatisfactory.”

3. [3]
   The evidence about the appellant’s violent relationship with the complainant was admitted pursuant to s 132B(2) of the Evidence Act 1977 without objection.  That sub-section provides that “[r]elevant 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”.
4. [4]
   The provision was considered in Roach v The Queen^[1] in which case evidence of the appellant’s previous violence towards the complainant was led to prove that the appellant had assaulted the complainant, who was his domestic partner.  The evidence was relevant to the prosecution case because, without it, “the jury would be faced with a seemingly inexplicable or fanciful incident” and the “incident charged would otherwise appear to be given in a vacuum”.^[2]  If the evidence had been led to prove the appellant’s propensity to assault the complainant, then its admissibility would have had to be determined by the application of the usual rules about the admissibility of propensity evidence to prove the commission of an offence.^[3]  In both Roach and this case the evidence of previous acts of violence was not tendered for such a purpose.  It was tendered to “explain the circumstance of the offence charged” and “so that [the complainant] 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”.^[4]  The purpose of enacting the provision was to ensure 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”.^[5]  Any potential for unfairness to the accused by the admission of such evidence has to be considered by reference to s 130 of the Act.^[6]
5. [5]
   The complainant gave evidence about the appellant’s attack upon her.  It involved a number of assaults, apart from the choking which was the particular subject of the offences, as well as threats by the appellant to kill the complainant, to kill her parents and to kill her children if she did not do what he told her to do.  Her evidence about his earlier acts of violence concerned two assaults which were not as serious as the charged acts themselves.
6. [6]
   The appellant did not give evidence or call any evidence.  His forensic options were, therefore, limited.  Accordingly, “The question in this case”, according to defence counsel’s closing address to the jury, was whether the jury was prepared to “accept [the complainant] to be a credible and reliable witness beyond reasonable doubt, essentially”.  Counsel identified and emphasised what he submitted were important inconsistencies and implausibilities in the complainant’s account.  He concluded his examination of the evidence with the plea that the jury ought not accept the complainant as a “credible or reliable witness” and that, if they did not, it followed that “Mr FBA is entitled to an acquittal on all four counts of choking”.  In his address, counsel made no reference at all to the evidence of prior acts of violence.  The prosecutor, who addressed the jury first, did refer to it.  He mentioned a particular concession which the complainant had made while giving that evidence and used that concession to support a submission that she could be regarded as a candid witness.
7. [7]
   The real problem for the appellant in this case was not the evidence of his prior acts of violence towards the complainant; it was that the evidence of the complainant about the charged offences was corroborated by evidence in photographs taken of her after the acts in question.
8. [8]
   The learned judge directed as follows:

“So the real question here, did it happen?  Did the particularised charges happen?  Now, you have heard evidence about other conduct which has taken place between them in which the Prosecution says “We needed to call that to explain these incidents,” which are the subject of the alleged offences.  In a sense what they are saying is this: “If you just heard about these offences without the background it would seem as though it was out of the blue, so we are entitled to show you this is not out of the blue”.  But you must understand that the relevance of that evidence of the other times is limited.  If you accept it, it does not make it more probable that he committed the alleged offences.  It is relevant only to answer questions you may have as to the background to the incidents, which I just explained to you.

The Prosecution say, “We lead this to show you this is not out of the blue behaviour.”  The Prosecution says that if you are satisfied that the other acts occurred they would also assist your understanding of the background to the incidents which are the subject of the alleged offences.  It is for you to decide whether the evidence assists you in that way, but you cannot use that evidence of the other times unless you are satisfied beyond reasonable doubt that those other acts occurred.  Again, you cannot infer only from the fact that the other acts occurred that he did the things with which he has been charged.  So that is how you use the evidence of the other acts.”

9. [9]
   Ms Robb, who appeared for the appellant, submitted that the second-last sentence of that direction connoted that “you can infer [guilt] from those matters”.  As best I can understand that argument, the word “only” in that sentence might have implied to the jury that the evidence of prior acts of violence together with other evidence could be used to prove guilt.
10. [10]
    If by that argument it is meant that the jury might have understood that the evidence of prior acts of violence could be used as propensity evidence, then I am unable to accept it.  The jury had just been told how they could use the evidence, in accordance with the principles established in Roach.  Nothing in the words gives rise to any possible implication about the use of the evidence to support propensity reasoning.  No propensity warning was asked for and none was given.  Defence counsel approached the forensic challenge presented by this evidence, sensibly, by saying as little as possible about it and to do his utmost to ensure, if possible, that others felt no need to refer to it either.  He succeeded.  A direction about the possibility of misuse of the evidence as propensity evidence would then have raised for discussion and consideration the whole issue of the appellant’s previous acts, which were also supported by contemporaneous photographs of the injuries he inflicted.  In some cases a warning about the potential for misuse of such evidence as propensity evidence will be prudent or desirable or necessary but not in this case.  In my respectful opinion, in this case there was a real forensic risk to be incurred by such a direction which would have called the jury’s attention to the evidence.  The weight of the defence case was to discredit the complainant and, accordingly, the cross-examination pursued that strategy in comprehensive detail and the closing address remained faithful to that line of attack.
11. [11]
    Yet now it is submitted that the “particular purpose for the admission of the evidence was not elucidated, and its relevance and probative value was not assessed.”  That submission is unsustainable.  The direction quoted above was devoted to the elucidation of the purpose of the admission of the evidence and its relevance.  It is true that its probative value was not “assessed” by the judge but it did not have to be.  Dick DCJ said very little about how the evidence of violence by the appellant might actually contextually support the prosecution case.  That was a blessing to the defence.  To do otherwise would have been to raise the significance of the evidence and weaken the defence position which was to minimise the significance of that evidence.  It is understandable why defence counsel did not invite her Honour to discuss that evidence at length.  Such a direction could not possibly have helped the defence.
12. [12]
    I would reject this ground.
13. [13]
    Ground 1(b) complains about the admissibility of the evidence of the complainant’s daughter that she had seen bruises on her mother.  It is said that the daughter did not give evidence about the origin of those bruises and that the timing of her sighting was incredible because it was inconsistent with her mother’s account about when the appellant hit her for the first time.  It is also said that her evidence “failed to come up to proof”.  The evidence was admitted without objection.  It was circumstantial evidence.  The trial took only two days.  The complainant was the main, and the longest, witness.  The evidence was obviously relevant and admissible.
14. [14]
    The appellant also submits that a Robinson direction should have been given.  It is understandable why Dick DCJ, a highly experienced criminal trial judge, did not give such a direction.  First, defence counsel did not ask for one.  Second, such a warning is only required if it is “necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case”.^[7]  Such circumstances might include, for example, evidence which could affect the credibility of a witness but which the jury is unable to appreciate without instructions, such as the effect of long delay in prosecution upon the ability of a defendant to marshal responsive exculpatory evidence.  A warning might also be required when there is no evidence against an accused except that of the complainant.  There was nothing in the present case which would have suggested to the learned judge that the jury required specific assistance in order to assess the complainant’s credibility and/or to suggest that, in the absence of such assistance, there was a risk that the jury might be unable to appreciate some exculpatory factor.  In this case the credit arguments were all made obvious in the course of cross-examination as well as in the defence address; none were obscure.^[8]  The jury would have been in no doubt about the factors that went to the complainant’s credit and the weight that might arguably be given to them.  For this reason no direction was required.
15. [15]
    This ground should be rejected.
16. [16]
    By ground 3 the appellant contends that the evidence of the complainant was inaudible in part.  Strangely, the appellant complains that the parts that were inaudible were some of the evidence in chief.  In the absence of any complaint at first instance that the trial was unfair, it is impossible to conclude on appeal, on the basis of references to the transcript that the trial miscarried.  This ground should be rejected.
17. [17]
    For these reasons I would dismiss the appeal.
18. [18]
    McMURDO JA:  I agree with Sofronoff P.
19. [19]
    BODDICE J:  On 5 August 2020, a jury found the appellant guilty of four counts of choking.  He was sentenced to two and a half years’ imprisonment.  A parole release date was set after serving 15 months of that sentence.
20. [20]
    The appellant appeals that conviction.  An application for leave to appeal against sentence was abandoned at the hearing.
21. [21]
    The appellant relies on four grounds of appeal.  First, the trial Judge erred in failing to clearly direct the jury as to the identification, purpose and use of relationship evidence and in admitting evidence as relationship evidence.  Second, a failure to direct the jury in accordance with a Robinson direction caused a miscarriage of justice.  Third, the complainant’s evidence in chief was inaudible in parts and caused the trial to miscarry.  Fourth, that the verdicts were unreasonable, having regard to all of the evidence.

Background

22. [22]
    The appellant was born on 31 January 1978.  He was aged 41 at the commission of the offence and aged 42 at sentence.
23. [23]
    The complainant in each count was his then domestic partner.  They had been in a relationship for approximately 18 months.

Offences

24. [24]
    Each offence was committed on or about 22 October 2019.  Each offence was a domestic violence offence.
25. [25]
    At the trial, it was admitted that the appellant was in a domestic relationship with the complainant at the time of each offence.
26. [26]
    The Crown provided particulars of each count.  Relevantly, those particulars alleged that the appellant applied pressure to the neck and/or throat of the complainant, using his hands or his forearms, as a result of which the complainant’s breathing was hindered or stopped and that the appellant’s actions were unlawful and the complainant did not consent to those actions.
27. [27]
    The material difference in each particular was that count one occurred in the main bedroom, whilst the complainant was packing her bags; count two occurred in the lounge area, following an argument about a tobacco pouch; count three occurred in or near the bathroom; and count four occurred in the appellant’s daughter’s bedroom.

Evidence

28. [28]
    The complainant met the appellant in 2018.  They developed their relationship through their church.  Although they were in a domestic relationship, they lived at different residences.
29. [29]
    On 20 October 2019, the complainant travelled from her residence on the Gold Coast to the appellant’s residence at Cooper’s Plains.  She remained there for three nights.
30. [30]
    At around 5 pm on 22 October 2019, the appellant and the complainant had an argument.  The appellant accused the complainant of infidelity.  They also argued over money.  The complainant had given the appellant money for fuel to take her home, but he was refusing to do so.
31. [31]
    The complainant said that, as she was packing in the appellant’s bedroom, the appellant accused her of stealing from him.  As they continued to argue, the appellant grabbed the complainant’s arms and “shoved” her to the floor.  The complainant hit the bed leg on the way down with her head, arm and leg.  The appellant flipped the complainant onto her back, put his hands around her throat and pressed with two hands so she could not breathe.  The complainant did not know for how long and did not know why he stopped squeezing her throat.  She did not consent to the appellant putting his hands around her throat at that time.
32. [32]
    The complainant said when the appellant moved away, she rolled onto her side and said she could not breathe.  The appellant replied “Yes, you could”.^[9]  The appellant then obtained a beer from the fridge.  She estimates the appellant drank at least a six pack that afternoon.
33. [33]
    The complainant said she moved away from the bedroom to the lounge area.  Whilst there, they continued to argue, with the appellant accusing her of being unfaithful.  The complainant tried to calm things down.  She offered the appellant a cigarette.  The complainant picked up her tobacco pouch from the dining room table.  As she went to roll a cigarette, the appellant said “No.  I’ll roll it”.^[10]  The complainant refused to give him the pouch.  They struggled and both ended up on the floor.
34. [34]
    The complainant said she was on her hands and knees on the floor.  The appellant was on his back.  The appellant grabbed the complainant around the throat again, from behind.  He squeezed his thumbs and fingers around her throat.  The complainant could not breathe.  He applied pressure for long enough that she thought she might die.  She did not consent to the appellant putting his hands around her neck and squeezing on that occasion.
35. [35]
    The complainant said she did not know why the appellant stopped, but he went to the fridge to obtain another beer.  Her neck was sore everywhere.  She sat on the couch and rolled a cigarette and smoked it.  The complainant made out that she needed to go to the toilet.  She took her bag with her into the bathroom.  The appellant followed her into the bathroom.  He demanded the telephone in her bag.  The complainant did not want to give it up.
36. [36]
    The appellant grabbed a metal broom handle and waved it around.  He made the complainant sit on the toilet.  He pushed the broom handle to her mouth.  He said if she talked to police, he would shove it through the back of her throat.  He also said if she did not shut up, he would shove it through the back of her throat.  The appellant took the mobile telephone.  The complainant did not want to give it up.  They ended up on the floor, with the appellant on top of her, having tackled her to the ground.  The complainant had “a big egg”.^[11]  It was a big bruise above her right eye.
37. [37]
    The complainant said the appellant flipped her over onto her back, kneeled over her, and put his hands around her throat again and squeezed so she could not breathe.  The complainant could not move as she was up against the wall.  The complainant begged the appellant to let her go.  She said she would do anything he said and “I’ll be quiet.  I’ll be quiet.”^[12]  The appellant then left the room, with the mobile phone.  The complainant did not consent to the appellant putting his hands around her throat and squeezing it on that occasion.
38. [38]
    The complainant said the appellant then made her go into the bedroom normally used by his daughters.  He said if she made a sound, he would kill her.  The appellant forced her to the ground, knelt on her sternum and pushed his forearms up against her throat so she could not breathe.  On this occasion, the appellant tackled her from the front, not from behind.  The complainant thought she was going to die.  She could not breathe.  She did not consent to the appellant putting his forearms on her throat.
39. [39]
    The appellant said “Shut up, you inconsiderate bitch.  If you talk to the police, I’ll kill you.”^[13]  The appellant “said all sorts of things.  It was ongoing, all afternoon.”^[14]  The appellant said he would plead guilty, do eight years and then kill her.  He would kill her parents, her children and her children’s children.  He said he was going the kill the complainant last and make her watch so that it was most painful.  The appellant ceased pressing on her throat when someone knocked on the door.  The complainant thought it was the police.  She had been screaming pretty much the whole time, trying to use her voice to get someone to help her.
40. [40]
    When the knock at the door happened, the appellant sat down on the bed and told the complainant to shut up.  He said if she made a sound, he would kill her.  He then shut the door.  The complainant heard the front door open.  A short time later, she heard it shut again.  She did not know who was at the door.  She remained in the bedroom for at least half an hour.  She was tapping on the doorframe really quietly and calling the appellant’s name.  She was scared he was waiting for her to come out.
41. [41]
    The complainant slowly and quietly opened the door.  She could hear snoring from the master bedroom.  She found her handbag on the bedroom floor and “commando crawled” to get it.^[15]  She put her possessions into a large bag and dragged it out of the bedroom.  She located her mobile phone tucked down in the couch.  It was in pieces.
42. [42]
    The complainant said the appellant had locked the front door.  He had put a chair under the door handle before taking it away again.  Whilst she was searching for the keys there was another knock at the door.  When she opened the door, there were two males outside.  She asked them to get her out.  They grabbed her belongings and took her downstairs.  The two men started to drive her away before she asked to return to a neighbour’s unit in the same complex.
43. [43]
    Those neighbours convinced the complainant to go to the hospital.  The complainant was examined by doctors.  Photographs were later taken of her neck, revealing marks and bruising.  The complainant did not have those marks prior to these incidents.  There was also some bruising to her chest and bruising to her right temple.
44. [44]
    The complainant said this was not the first time the appellant had been physically violent towards her.  She had sustained scratches to her chest during an altercation with the appellant at her residence on 10 February 2019.  That was the first occasion of physical violence.  The dispute was over a wooden pipe.  During that altercation, the appellant pushed the complainant, causing a hole in the wall of the hallway.  Police were called and took a photograph of the scratch marks.
45. [45]
    The complainant said there was a further incident on 29 September 2019, in the appellant’s apartment.  They had been having an argument.  As the complainant lay down in bed, she remarked “I’ve had just about enough”.^[16]  The appellant turned and, with his right hand, grabbed her throat, putting his right thumb into the middle of her neck.  A photograph was taken of a red mark on her neck caused by this incident.
46. [46]
    In cross-examination, the complainant accepted that, in her statement to police, she said the argument started in the lounge room over a tobacco pouch; she never mentioned that the appellant choked her at all; she referred to a wrestling match, during which the complainant said she felt the ground hurting her left thumb, back and legs.
47. [47]
    The complainant also told police the attack in the master bedroom happened after the tobacco pouch incident and again did not make mention of being choked during the master bedroom incident.  The complainant agreed she told police that, during the incident in the bathroom, the appellant used his forearms to choke her and that the fourth incident of choking, in the daughters’ bedroom, happened when the appellant grabbed her from behind.  The complainant accepted that nowhere in her statement to police did she mention a chair being used to chock the door.
48. [48]
    The complainant accepted that the two males came inside the appellant’s apartment.  One of them sat on the bed, trying to wake the appellant up.  The other stayed outside, drinking a beer.  She accepted that, in that statement, she said the two men left and she then went to the neighbour’s apartment.  The complainant did not ask those two men to drive her to the police station or ask if she could borrow their mobile phones.
49. [49]
    The complainant accepted that, at around the time of these events, she had been smoking methylamphetamine.  She accepted she had been awake for the previous three nights and three days.  The complainant accepted that she gave a statement to police on 3 December 2019, in which she said she was “in an altered state of mind”^[17] at the time she made her original statement on 28 October 2019.  The complainant denied that that was true.
50. [50]
    The complainant accepted she told police, in the statement dated 3 December 2019, she had lost her balance and fell to the floor as she tried to grab the tobacco pouch and that the appellant had asked her if she was alright and helped pick her up off the ground.  She also told police they had separated by the appellant going into his room and that they had done so many times in the past “as a way of preventing the arguments from occurring and to de-escalate any arguments”.^[18]  The complainant said these statements were not true.
51. [51]
    The complainant accepted that there had been contact with the appellant since the incident.  She did not recall sending a text message on 6 January 2020 to the appellant, in which she said she did not want these matters to go ahead in the Courts; that the appellant had never hurt her and never would; that he did not deserve to be punished for things he did not do and that she would be contacting the Director of Public Prosecutions to have the charges dropped against the appellant.  She accepted it appeared the message had been sent from her telephone number and was authored by her.  The complainant did not believe she sent that text message.
52. [52]
    The complainant accepted she signed a written withdrawal of complaint on 19 December 2019, in which she gave as reasons why she did not wish to proceed with the complaint that it may have been that a former boyfriend committed the choking offences and that she was in an altered state of mind at the time of the offending.  The complainant said she was trying to make excuses for what had occurred.  The complainant did not accept she did not want to proceed with the complaint.
53. [53]
    The complainant accepted she had a former boyfriend who had stalked her and of whom she was very fearful but did not accept she believed it was the former boyfriend who had committed the choking offences on 22 October 2019.
54. [54]
    The complainant accepted she also gave as a reason for not wishing to proceed with the complaint that she was suffering from dissociation and from hallucinations prior to and at the time of the offending, but said she was “again, looking for excuses”.^[19]  The complainant did dissociate to a degree at the time of the events but did not suffer from hallucinations at that time.  Her dissociation took her mind away from what was happening and did not allow her to remember what had occurred.
55. [55]
    The complainant agreed that her memories had been recovered through counselling over time.  The complainant had been receiving weekly counselling since these events.  Her memory of what had happened on 22 October 2019 had “come to me gradually”.^[20]  Those weekly sessions allowed her to remember more than she had remembered initially.
56. [56]
    The complainant also accepted that, in her withdrawal request, she said she had been using methylamphetamine, “which increased the effects of my mental condition and caused psychosis”.  The complainant said the use of the drug caused psychosis, but she was not saying it was definitely on that night.  That withdrawal also said she felt pressure from police when she provided her initial statement.  The complainant said that statement was not true.  She felt pressure when she tried to withdraw or retract the statement.  The complainant was told she could be prosecuted for making a false police statement.
57. [57]
    The complainant accepted she had signed the withdrawal of her own free will.  Her withdrawal statement contained these words “I confirm that what I am stating now is what I believe to be the truth”.^[21]  It was not true when she said in that withdrawal that she did not believe the appellant committed the offence against her on 22 October 2019.  It was not true when she said that the appellant had passed out “when this happened to me”.^[22]  That was a lie.
58. [58]
    The complainant accepted she had previously been diagnosed with clinical depression and drug induced psychosis.  She had suffered from drug induced psychosis during her relationship with the appellant.  The complainant accepted that she had suffered from methylamphetamine psychosis on several occasions.  On one of those occasions, she had delusions that thin white worms were in her fingers.  She agreed no such worms existed and it was part of her psychosis.
59. [59]
    The complainant accepted that, in a statement to police dated 3 December 2019, she said she had gone into the appellant’s daughter’s room and got ready for bed.  The complainant said that was not true.  She did not willingly go into the bedroom, she was pushed in there.
60. [60]
    In re-examination, the complainant said she withdrew the complaint for a number of reasons.  She was in love with the appellant and wanted to protect him.  She had also been barraged with calls and was extremely emotional and highly distressed.  She was trying to do the best for everybody, but especially the appellant.
61. [61]
    HN was residing in the same apartment complex as the appellant.  The complainant attended her apartment on the evening of 22 October 2019.  HN observed bruises to the complainant’s head and arms.  She took the complainant to hospital.  Initially, the complainant refused to attend hospital.  The complainant was passing out, not making much sense.
62. [62]
    FD, the complainant’s daughter, lived with the appellant and the complainant in 2018.  Whilst doing so, she observed behavioural changes, as well as physical changes, in the complainant.  She could not speak to the complainant without the appellant being present.  She heard them have verbal arguments late at night.  She did not ever see any physical fights, but did see bruises on the complainant.
63. [63]
    Callum Saunders, a police officer, took a formal statement from the complainant.  His investigations revealed that the complainant used a mobile number between April 2019 and March 2020.
64. [64]
    The complainant was examined by Dr Hegarty at about four o’clock in the morning of 23 October 2019.  The complainant complained of suffering pain and tenderness to her neck and left hip.  There was tenderness and bruising over the front of her neck, together with bruising over her right forehead and lower third of her sternum.  There was pain and a superficial skin abrasion over the left base of her thumb.
65. [65]
    Dr Hegarty opined that the tenderness, swelling and bruising found over the front of the neck could have been caused by choking, in which both hands were placed around the complainant’s neck at the same time.  The bruising over the lower third of the sternum could be consistent with pressure to that area.  Dr Hegarty accepted that bruising can be caused by any form of blunt force trauma.  He also accepted it was very difficult to tell the age of bruises.
66. [66]
    Dr Hegarty said methylamphetamine can cause disturbed sleep patterns and bizarre or erratic behaviour.  Higher doses can cause panic and psychosis, including delusions or hallucinations.  A lack of sleep for three or four days can cause disorientation, hallucination and delusions, as well as bizarre or erratic behaviour.  He did not, however, recall any evidence, from his observations, that the complainant was suffering from psychosis.
67. [67]
    At the conclusion of the Crown case, the appellant elected to neither give nor call evidence.

Appellant’s submissions

68. [68]
    The appellant submits the evidence of previous acts of domestic violence was erroneously admitted as relationship evidence.  There was no nexus drawn between the circumstances of those previous instances and the charged offences.  Further, the purpose of the tender of that evidence was not appropriately explained to the jury.  Instead, inconsistent directions were given regarding that relationship evidence.
69. [69]
    The appellant submits the first direction to the jury to the effect that the relevance of that evidence was limited to show that these events were not out of the blue and that, even if it was accepted by the jury it did not make it improbable that the appellant had committed the offences, was negated by the subsequent direction that the jury could not use that evidence unless satisfied beyond reasonable doubt that those other acts occurred and that they could not “infer only from the fact that the other acts occurred”^[23] that the appellant committed the offences.  This was particularly so when the trial Judge did not clarify for the jury what was the relationship evidence described as “other conduct”.
70. [70]
    The appellant submits the trial Judge also erred in admitting the evidence of the complainant’s daughter having observed bruising on the complainant.  There was no evidence that the appellant had been violent to the complainant in 2018.  The complainant’s daughter expressly gave evidence that she did not observe any physical fights.  Further, the complainant’s own evidence was that the first occasion the appellant had been physically violent towards her was in February 2019.
71. [71]
    The appellant submits the trial Judge erred in failing to give the jury a Robinson direction.  Whilst no such direction was sought at trial, a consideration of the evidence supported a conclusion that there was an obligation upon the trial Judge to give such a direction.  The complainant gave evidence that she dissociated at the relevant time, that her memory of events had come back with counselling over time, that she had not slept for three days and nights prior to the alleged offences, that she had been taking methylamphetamine and suffered from methylamphetamine induced psychosis in the past, that there were two other men who had attended the apartment, that the complainant had willingly signed a retraction of the allegations, had admitted lying to police about relevant matters and had falsely denied other relevant events.
72. [72]
    The appellant submits the trial also miscarried by reason of the inability to hear much of the complainant’s evidence in chief.  As the case revolved entirely around an acceptance of the complainant as a reliable and credible witness, the inaudibility of her evidence occasioned a miscarriage of justice.
73. [73]
    Finally, the appellant submits that, whilst the jury must have accepted the complainant as credible and reliable, her evidence of having recovered memories with counselling, of having suffered dissociation, and of having not slept for three days after taking methylamphetamine and the neighbour’s account of the complainant having passed out and not making much sense, all gave rise to a conclusion that it was not open to the jury, on the whole of the evidence, to be satisfied beyond reasonable doubt of the appellant’s guilt of any of the offences.

Respondent’s submissions

74. [74]
    The respondent submits that evidence of prior episodes of domestic violence was properly admitted as showing the nature of the relationship and the jury was properly instructed as to the purpose and limited relevance of that evidence.  Specifically, the jury was directed they were not to use that evidence to infer the appellant committed the offences.  There was no obligation on the trial Judge to clarify specifically that conduct.  The complainant’s daughter’s evidence was also properly admitted as relationship evidence.
75. [75]
    The respondent submits there was no obligation on the trial Judge to give a Robinson direction.  The matters said to be relevant to the complainant’s credibility were all matters readily apparent to any juror.  Further, many were the subject of specific reference by the trial Judge in the course of the summing up.  Accordingly, there was no perceptible risk of a miscarriage of justice.
76. [76]
    The respondent submits that an analysis of the transcript of the trial does not give rise to a concern that the jury did not hear all of the complainant’s evidence in chief.  On occasions when the jury was unable to hear, the evidence was repeated and the jury were expressly directed by the Judge to advise if there were any concerns in relation to their ability to hear the complainant’s evidence.
77. [77]
    Finally, the respondent submits that an independent assessment of the evidence, as a whole, supports a conclusion that it was open to the jury to be satisfied of the appellant’s guilt of each of the offences beyond reasonable doubt.  The complainant’s evidence was not implausible and her written retraction was explained in evidence.

Consideration

78. [78]
    Evidence of the history of the domestic relationship between a defendant and complainant is admissible evidence.^[24]  In such cases, the stringent test for admissibility in Pfennig v The Queen^[25] does not apply.  However, such evidence must be relevant and its relevance to the particular case must be explained to the jury.^[26]
79. [79]
    Evidence of a domestic relationship may be relevant, although its purpose is to demonstrate that the defendant had a propensity to commit the act of violence against the complainant, which is the subject of the charge.^[27]  However, in that event, a jury must be directed as to the limits as to the use to which that evidence can be put so as to overcome the potential for misuse of that evidence by the jury.
80. [80]
    In the present case, the jury was specifically directed as to the basis upon which they had heard evidence of alleged prior domestic violence by the appellant:

“So the real question here, did it happen?  Did the particularised charges happen?  Now, you have heard evidence about other conduct which has taken place between them in which the Prosecution says ‘We needed to call that to explain these incidents’, which are the subject of the alleged offences.  In a sense what they are saying is this: ‘If you just heard about these offences without the background it would seem as though it was out of the blue, so we are entitled to show you this is not out of the blue’.  But you must understand that the relevance of that evidence of the other times is limited.  If you accept it, it does not make it more probable that he committed the alleged offences.  It is relevant only to answer questions you may have as to the background to the incidents, what I just explained to you.

The Prosecution say ‘We lead this to show you this is not out of the blue behaviour’.  The Prosecution says that if you are satisfied that the other acts occurred they would also assist your understanding of the background of the incidents which are the subject of the alleged offences.  It is for you to decide whether the evidence assists you in that way but you cannot use that evidence of the other times unless you are satisfied beyond reasonable doubt that those other acts occurred.  Again, you cannot infer only from the fact that the other acts occurred that he did the things with which he has been charged.  So that is how you use the evidence of the other acts.”^[28]

81. [81]
    Whilst the first paragraph of that direction correctly directed the jury as to the purpose for which the evidence was led and as to its limited relevance, the second paragraph, by its terms, conveyed to the jury two matters.  First, that they could not use that evidence unless satisfied beyond reasonable doubt that those other acts had occurred.  Second, that they could not infer only from the fact that the other acts occurred that the appellant did the charged acts.
82. [82]
    The direction in the second paragraph was suggestive of the evidence being admissible to show that the appellant had a propensity or tendency to commit acts of violence against the complainant.  That was not the basis for that evidence being led.  If it had been, it was incumbent on the trial Judge to specifically warn the jury that they must not decide the appellant is guilty from only that evidence, and if they were not satisfied that evidence showed a propensity or tendency to commit an offence of the type charged, they must not use the evidence to assess whether he was guilty of each of the offences.
83. [83]
    The inclusion of the second paragraph gave rise to a real and substantial risk that the jury was confused as to the use of the relationship evidence.  The potential misuse of such evidence gives rise to a real risk that the appellant was deprived of a fair chance of acquittal, such that there has been a miscarriage of justice.
84. [84]
    The miscarriage of justice is compounded by the admission of the complainant’s daughter’s evidence of having witnessed bruises on her mother in 2018.  That evidence was not related to any acts of physical violence by the appellant to the complainant.  An inference to the effect that the bruises must have been occasioned by the appellant’s infliction of physical violence upon the complainant was completely inconsistent with the complainant’s own evidence that the relationship was only occasioned by acts of physical violence from 2019.
85. [85]
    The conclusion reached in respect of ground one necessitates a setting aside of the appellant’s convictions.  In such circumstances, there is no need to further consider grounds two or three.
86. [86]
    A conclusion that the jury verdicts were unreasonable would result in the jury verdicts of guilty of each count not only being set aside, but verdicts of acquittal being entered in their stead.
87. [87]
    A jury verdict is unreasonable if the Appellate Court concludes that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.  In determining such a ground, the Appellate Court must undertake its own independent assessment of both the sufficiency and quality of the evidence to determine whether, notwithstanding that there is evidence upon which the jury might convict, it would be dangerous in the circumstances to permit verdicts of guilty to stand.^[29]
88. [88]
    In assessing the evidence, the Appellate Court must give due regard to the benefit the jury had of seeing and hearing witnesses.  If, even allowing for those advantages, the Appellate Court concludes that the evidence contained discrepancies, inadequacies, was tainted or otherwise lacked probative force, such as there is a significant possibility that an innocent person has been convicted, the verdict is to be set aside as unreasonable.^[30]
89. [89]
    A consideration of the complainant’s evidence supports a conclusion that there was good reason for a jury to carefully scrutinise her evidence, particularly having regard to her drug use and its effects on her mental health, the inconsistencies in aspects of her evidence and her written withdrawal of the complaint.  However, it does not follow that it was not open to the jury, having carefully scrutinised the evidence in light of those matters, to conclude that the complainant was both credible and reliable in her account of the appellant’s choking of her neck on four occasions on or about 22 October 2019.
90. [90]
    A medical examination within hours of the last choking incident revealed injuries consistent with the squeezing of hands around the complainant’s neck.  The complainant made a relatively timely complaint to police.  Whilst her initial statement did not make reference to the earlier instances of choking, it was for the jury to consider the complainant’s explanation for that inconsistency.  Similarly, it was a matter for the jury to determine whether the complainant’s explanation for her written withdrawal of the complaint, in the context of the evidence as a whole, was credible.  That explanation meant the withdrawal of the complaint did not provide a discrepancy such that the complainant’s account could not be accepted as reliable and credible.
91. [91]
    Having undertaken an independent assessment of the record as a whole, it was open to the jury to accept the complainant’s account of each offence as reliable and credible.  The discrepancies in that account and the other circumstances did not render that evidence so lacking in probative force as to conclude that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt of each of the offences.  The verdicts of the jury were not unreasonable.

Orders

92. [92]
    I would order:

1. (1)
   The appeal against conviction be allowed.

2. (2)
   The verdicts of the jury be set aside.

3. (3)
   There be a new trial on each count.

4. (4)
   The application for leave to appeal against sentence be dismissed.