R v DBZ[2022] QCA 200

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  The appellant was tried on 10 counts in the District Court before a jury.  On 15 October 2021, the jury returned verdicts of guilty on each of counts 4‑10.  The jury were unable to agree and were therefore discharged from giving verdicts on counts 1-3.
2. [2]
   The complainant and the appellant were in a relationship between 2009 and late 2011.  There were three incidents that resulted in the charges.  Count 1 (assault occasioning bodily harm) arose out of an incident that was particularised as occurring between 23 January and 1 February 2011 when the complainant and the appellant were arguing and then he came up to the complainant and hit the right side of her face with the back of his hand.  They both ended up lying down on the bed and had sexual intercourse, even though she told him a couple of times to stop (count 2 – rape).  Count 3 (assault occasioning bodily harm) arose out of an incident particularised as occurring between 23 January and 1 May 2011 when the complainant alleged that the appellant shoved her, she fell to the floor, and he kicked her four times.
3. [3]
   Counts 4-10 all occurred on the same occasion on a date between 1 May and 1 July 2011 when the relationship between the complainant and the appellant had deteriorated.  They comprised one count of assault occasioning bodily harm (count 4), one count of common assault (count 5), four counts of rape (counts 6-9), and one count of sexual assault (count 10).
4. [4]
   The prosecution’s case at trial depended on the jury’s accepting the complainant as a credible witness.  The appellant’s case at trial was that the conduct alleged against him did not occur and there was no forensic evidence to support the allegations.
5. [5]
   The grounds of appeal are:

2. 1.the verdicts on counts 4-10 are unreasonable;
3. 2.the jury’s failure to reach verdicts on counts 1-3 is inconsistent with the guilty verdicts on counts 4-10;
4. 3.the learned trial judge failed to provide a direction to the jury addressing the significant forensic disadvantage experienced by the appellant due to delay;
5. 4.that the discreditable conduct direction given by the trial judge was prejudicial;
6. 5.that the evidence of Dr van Buuren was inadmissible; or in the alternative that it ought to have been excluded in the exercise of the trial judge’s discretion; and
7. 6.that the trial judge failed to direct the jury regarding the use to be made of Dr van Buuren’s expert evidence.

Summary of the relevant evidence

6. [6]
   The complainant’s evidence included the following.
7. [7]
   The complainant and the appellant were both in year 11 at high school in April 2009 when their relationship commenced.
8. [8]
   About a month after they had started seeing each other, the appellant moved in with the complainant’s family.  After a couple of months, the appellant started sleeping with the complainant in her room.  They planned for the complainant to complete year 12 and obtain a scholarship to attend Bond University and for the appellant to leave school and work during 2010, so that they could save up for the move to the Gold Coast.
9. [9]
   The appellant moved out of the complainant’s family home in the June/July school holidays in 2010, after the complainant and the appellant had an argument.  The complainant yelled and screamed at the appellant and said nasty things trying to rile him up.  She was standing in the doorway of her room and he was sitting on the bed.  He had a laptop on his lap and threw the laptop onto the bed, got up, was snarling and started running at the complainant.  She slammed the door shut and ran to the bathroom and locked herself in.  The appellant did not hit the complainant on that occasion, but she asked him to move out as a result. (This evidence was led by the prosecution as evidence of the history of the relationship between the appellant and the complainant, as permitted by s 132B Evidence Act 1977 (Qld) (Act).)
10. [10]
    The complainant obtained the scholarship to attend Bond University, but the appellant had not saved enough for them to live on and they borrowed money from the complainant’s parents.  They travelled to the campus on 7 January 2011.  The complainant was staying in accommodation called “The Blocks” which comprised individual rooms with a shared bathroom.  The appellant was staying in a different building called the Accommodation Centre.  The complainant did not adjust well to being away from home and her family and friends and struggled to make new friends.  The appellant made new friends quickly.  Their relationship strained and they argued frequently, as the complainant wanted more attention from the appellant.
11. [11]
    After the start of classes in 2011, the appellant and the complainant were in the complainant’s room in The Blocks, when the complainant described the incident which was the subject of count 1 (the first incident).  They were having an argument, when the appellant threw a chair in anger against the wall and then came up to the complainant and hit the right side of her face with the back of his open hand.  The force moved the complainant’s head and made her stumble backwards.  It connected around her upper right cheek and the side of her right eye.  She later developed swelling on the top of her eyelid and bruising along the top of her cheekbone which she observed the next day.  The appellant then started hugging her and apologising.  The complainant started crying and he ushered her over to the bed and they both lay down.  They were facing each other, the complainant cried and the appellant was holding her for about 10 minutes, when he started to kiss her and she put her hands up and told him to stop.  He kept kissing her, touching her breasts, got on top of her, pulled down her underwear and they had sexual intercourse, despite her telling him to stop as she did not want to do that (count 2).
12. [12]
    Their relationship continued.  They had a few more arguments in that trimester.  During those arguments, the appellant would get close to the complainant’s face, sometimes yelling and shoving her in the chest. (This general evidence about the appellant’s shoving the complainant in the chest during arguments was also led as relationship evidence pursuant to s 132B of the Act.)  The second incident happened on one occasion in the complainant’s room in The Blocks, when they were arguing (although she did not remember what they were arguing about), she fell over after the appellant shoved her and, while she was lying there, he kicked her four times in the side, the ribs and her stomach (count 3).  She did not remember much about the second incident other than the kicking.  She got a couple of bruises along her stomach and ribs which she noticed in the couple of days following.
13. [13]
    At the end of the first trimester, the complainant and the appellant returned to Rockhampton and stayed with their respective families.  They returned to the university for the next trimester.  The complainant changed her accommodation to the Accommodation Centre where she shared a room with a female roommate.  In about May 2011, when her roommate was not there, the complainant invited the appellant to her room and broke up with him.  They decided to stay friends.  About a week later the complainant told the appellant she was romantically interested in one of their mutual friends X and asked whether he had any problem if she pursued that.  The appellant said something to the effect of “Go do whatever you want”.  That night the appellant told the complainant that he wanted to get back together and that he would kill himself, if they did not get back together.  The complainant agreed to get back together with the appellant.  They went to X’s unit for some drinks about a week later.  It was around June or July 2011.  The complainant, the appellant and X drank a lot of beers and became intoxicated.  The three of them engaged in sexual intercourse (which the complainant referred to as “a threesome”).  After the sex had ended, the appellant and the complainant dressed, grabbed the rest of the beers and walked back to her room in the Accommodation Centre.  Her roommate was not there.  The third incident then ensued.
14. [14]
    The appellant asked the complainant whether she enjoyed that and, when the complainant responded in the affirmative, the appellant shoved her in the back with both his hands and she fell across the bed and hit her head on the wall against the end of the bed.  It was not a little push.  As a result of hitting her head on the wall, there was blood on her head and a streak of blood on the wall which was about the width of a teaspoon.  This comprised count 4 (assault occasioning bodily harm).
15. [15]
    Whilst the complainant remained on the bed, the appellant got on top of her and she was on her back.  The complainant stated:

“He straddled across my waist, sort of, and he grabbed my throat with both of his hands and he squeezed. And I tried to grab his hands and pull them away and I couldn’t. And he kept squeezing and I couldn’t breathe. And I just saw his teeth. He was squeezing, it felt like, as hard as he possibly could. And then I saw some white spots and I – I don’t know what happened after that. It just went dark.”

16. [16]
    The appellant’s hands were positioned in “a V sort of thing with both of his hands pushing” on the middle of her neck.  The complainant could feel the pressure on the sides of her neck more than on the front.  The appellant was pushing down on the front as well, but he was gripping with his hands on the sides.  It did not last for long and she guessed 10 to 15 seconds.  The assault by the appellant with his hands squeezing the sides of the complainant’s neck comprised count 5 (common assault).
17. [17]
    The next thing the complainant remembered was “sort of waking up” and feeling uncomfortable.  The complainant looked down and saw that the appellant had pushed her underwear to the side and she could feel at least one of his fingers in her vagina which comprised count 6 (rape).
18. [18]
    The appellant went back to straddling the complainant, undid his jeans, took his penis out and pressed it against her mouth and told her to suck it and that lasted for about three minutes which comprised count 7 (rape).
19. [19]
    The appellant got off the appellant and told her to lie on the bed normally.  He took his pants off, took off the complainant’s underwear and told the complainant to take off her bra.  The complainant told him that she did not want to do this.  The penetrative act of his penis into her vagina lasted about five minutes which comprised count 8 (rape).
20. [20]
    The appellant rolled over next to the complainant, told her to get on top which she did and told her to put his penis in her vagina which she did.  He put his hand to her throat, as she was positioning herself, and she was crying and it was painful.  The sexual intercourse lasted for five minutes which comprised count 9 (rape) before the appellant told the complainant to get off.  He then made her sit on the bed, as he stood in front of her and masturbated until he ejaculated onto her face and breasts.  That comprised count 10 (sexual assault).
21. [21]
    The appellant then told the complainant to have a shower which she did.  She had not consented to the appellant’s doing any of the acts that comprised counts 4-10.  She felt that her throat was sore almost immediately and it was sore to swallow for a couple of days afterwards.  She got some toilet paper from the bathroom, put some water on it and cleaned the blood smear off the wall.
22. [22]
    After the third incident, the complainant and the appellant continued their sexual relationship but their contact was less frequent.  Towards the end of that trimester their friends B and M asked them to move to a house in Robina.  The appellant moved there with B and M and, after the university break in August 2011, the complainant moved to the Robina house and shared a bedroom with the appellant.  By 11 October 2011, J was also living at the Robina house.  The complainant asked B and J to be present on 11 October 2011, as she was going to break up with the appellant.  By that stage the appellant had been staying away from the house a lot of the time.  The appellant came to the house on 11 October 2011 as requested by the complainant and the complainant broke up with him in a fairly short conversation.  The appellant told her that “you ruined my life” and stormed out.  He came back the next day to get the bag of his belongings that the complainant had packed for him.
23. [23]
    The complainant gave evidence of preliminary complaint made to two persons.
24. [24]
    A female housemate moved into the Robina house in early 2012.  The complainant had a few conversations with her.  There was one occasion when the complainant told her that the appellant had raped the complainant, but the complainant could not remember any other specific details of what she told the housemate.
25. [25]
    After the complainant and the appellant had broken up, she had a sexual relationship with X and she told him on one occasion after intercourse that the appellant had raped her.  Later at the end of 2018, the complainant went out for drinks in Brisbane with X and talked to him in general terms that the appellant had raped her.
26. [26]
    On 6 January 2019 the complainant went to the police to complain about the matters that were the subject of the trial.
27. [27]
    In cross-examination, the complainant denied the propositions that were put to her that there was never any sexual contact between the appellant and her which did not have her consent, there was never any occasion where the appellant was violent towards her, he never hit her, he never kicked her, he never pushed her and he never shoved her or anything of that kind.  The complainant accepted that by 11 October 2011, she suspected that the appellant was cheating on her.  The complainant denied the propositions put to her that she was making false claims against the appellant and that the emotions she had displayed in giving her evidence did not relate to any real events.  The complainant accepted that during 2012 she was struggling with study and work.  It was put to her that in 2012 she fabricated an account of her life with the appellant to blame him for her struggles and the complainant responded that the appellant was to blame.
28. [28]
    B gave evidence that he met the complainant and the appellant at Bond University and in 2011 they moved into a house at Robina with M and him.  They each paid one-quarter of the rent.  The appellant was asked to move out by the complainant in October 2011.  B was at home when the relationship between the complainant and the appellant ended, as the complainant had asked at least one of the other housemates to be at home when she spoke with the appellant.  B heard elevated voices but not yelling.  The appellant left at the end of the conversation with the complainant and returned the next day when the complainant was not at home to collect his belongings.
29. [29]
    The evidence of X included the following.  He met the complainant and the appellant at university in 2011 and he became friends with them.  He was aware they were in a relationship.  He saw them two or three times each week.  He never saw any violence between them.  He did not recall any verbal outbursts or arguments between them.  He did not recall seeing either of them with injuries.  He had a threesome with them in the second trimester in 2011.  It happened in his room in The Blocks.  They were all drinking beers and one thing led to another.  The complainant and the appellant seemed drunk.  X also gave preliminary complaint evidence that one evening in 2018, when he was at a bar in Brisbane with the complainant, she told him about an incident that happened with the appellant when she was raped.
30. [30]
    A police officer who investigated the complainant’s complaint gave evidence that, after he had taken the statement from her, he inquired about whether he could forensically test the room where the complainant had stayed in the Accommodation Centre and found out that the room had been repainted which precluded any forensic testing.
31. [31]
    The female housemate at the Robina house gave preliminary complaint evidence.  She and the complainant were in the dining room somewhere around the end of 2011 or early 2012 when the complainant said that the appellant had overpowered her and he had forced her legs open and pushed himself inside of her.  On another occasion they were in the living room when there was another conversation in which the complainant said that the appellant had abused her in a sexual way.
32. [32]
    There was one expert witness called in the prosecution case, Dr van Buuren.  The detail of her evidence is set out below in dealing with grounds 5 and 6.  All that is necessary to record for the purpose of dealing with grounds 1 and 2 is that Dr van Buuren’s evidence was narrow in scope relating only to count 5 and merely providing an explanation of common symptoms or the common sequence of symptoms seen in persons who experienced non-fatal strangulation.  The symptoms described by the complainant accorded with the symptoms explained by Dr van Buuren.
33. [33]
    The appellant gave evidence which included the following.  He went to Bond University in 2011 with the complainant.  He was doing a bridging course that would last 12 months and guarantee entry into a degree course.  He grew apart from the complainant during 2011, as he spent more time with the network of people he was involved with and less time with the complainant and that created tension between them.  He never used any violence towards the complainant and did not force himself upon her sexually.  They did argue which came to a head on 11 October 2011 when the complainant looked at the appellant’s laptop in the share house and saw messages between the appellant and a girl whom he had met.  They separated and the appellant returned the next day when the complainant was not there for his belongings.  In cross-examination, he agreed that he participated in the threesome with the complainant and X in the second trimester of 2011 and that there was alcohol involved.  He agreed that afterwards he and the complainant went back to the complainant’s room in the Accommodation Centre and that her roommate was not there.  He denied committing any of the acts that were the subject of the 10 counts.  He agreed that the two of them would argue from time to time and that their arguments would be “a two-way street”.

Grounds 1 and 2 – Unreasonable verdicts and inconsistent verdicts

34. [34]
    Ms Smith of counsel for the appellant appropriately acknowledges that as the complainant’s credibility was the main issue in the trial, her evidence must have been accepted by the jury in respect of counts 4-10 for the jury to return guilty verdicts for those counts.  The unreasonable verdicts ground is therefore pursued only as an adjunct to the inconsistent verdicts ground.  It is therefore convenient to deal with both grounds together.
35. [35]
    The appellant relies on the propositions found in MacKenzie v The Queen (1996) 190 CLR 348 at 366-368 as to the effect of inconsistent verdicts.  As explained in R v DAL [2005] QCA 281 at [22]-[27], the failure by a jury to agree on verdicts should not necessarily be equated with a verdict of acquittal for the purpose of applying the principles in MacKenzie.
36. [36]
    At the trial the jury was given the standard directions on trying to reach a unanimous verdict on each of the charges and that they needed to consider each charge separately, evaluating the evidence relating to that particular charge to decide whether the prosecution had proved its elements beyond reasonable doubt.  The jury was also given a direction in accordance with R v Markuleski (2001) 52 NSWLR 82.
37. [37]
    The guilty verdicts on counts 4-10 arose out of the third incident which means the jury found the complainant’s evidence in respect of that incident to be credible and reliable.  Counts 1 and 2 arose out of the first incident where the sexual intercourse that was the subject of count 2 occurred when the appellant was comforting the complainant by hugging and kissing her after the argument which the complainant had described as ending in the slap.  Very little detail was provided by the complainant of the second incident that was the subject of count 3.  As the above summary of the complainant’s evidence shows, the detail provided by the complainant of the third incident was more extensive than the detail for the second incident.  The complainant’s evidence about the threesome which preceded the third incident was also corroborated by X and the appellant.
38. [38]
    Having regard to the stage of their relationship at which the complainant said the first and second incidents occurred compared to the later stage of their relationship when the third incident occurred and the difference in the quality of the evidence given by the complainant in respect of count 3 compared to her evidence in respect of counts 4-10 and the appellant’s solicitude which preceded the sexual intercourse that was the subject of count 2, the failure of the jury to reach verdicts on counts 1-3 suggests the jury followed the trial judge’s directions about separate verdicts.  The failure to agree on counts 1-3 therefore did not preclude the jury being satisfied beyond reasonable doubt by the complainant’s evidence on counts 4-10 and does not undermine the guilty verdicts on counts 4-10.
39. [39]
    As this Court should consider the unreasonable verdict ground on the basis the jury found the complainant’s evidence on counts 4-10 to be reliable and credible, this is not a case where the assessment of all the evidence enables the Court to conclude that the verdicts on counts 4-10 were unreasonable: see Pell v The Queen (2020) 268 CLR 123 at [37].
40. [40]
    The appellant fails on both grounds 1 and 2.

Ground 3 – Significant forensic disadvantage direction

41. [41]
    Neither counsel sought a specific direction from the trial judge regarding delay.  The trial judge did give a direction to the jury about delay in the following terms:

“In this case, [the appellant] is facing charges that relate to events that are said to have occurred 10 years ago. There are some consequences to this, namely that in relation to the injuries led, there is no forensic evidence to support the complainant. For example, she said her blood was left on the wall of her room, but that room has since been repainted. There is no way of testing that evidence scientifically.

She says she was injured, but she did not go to the doctor or show her roommate, so there is no independent support for those allegations. That is just a factor that you take into account.”

42. [42]
    The jury had a question after they commenced deliberating relating to the effect of physical evidence or its absence.  The redirection was given in the following terms:

“In relation to that, the Crown has to prove its case beyond reasonable doubt. That is, it has to prove every element of the charge that you’re considering beyond reasonable doubt, and you have to decide the case on the evidence that’s before you. So in this case, there are allegations which, if they had been made at the time it happened, should have produced some physical evidence. For example, there should have been some evidence of bruising, or other evidence of injury or sexual interaction.

The complainant has given evidence about why she did not complain straight away, and it’s up to you what you make of that explanation. But at the end of the day, all the law requires you to do is to assess all the evidence that you have heard and decide whether, on the evidence that you do accept, the Crown has proved each element of the charge that you’re considering beyond reasonable doubt. So if, on an assessment of all of the evidence before you, the absence of any physical evidence leaves you in a state of reasonable doubt, then you should acquit.”

43. [43]
    The last sentence of that redirection was included after the submission of the appellant’s trial counsel for its inclusion.
44. [44]
    The direction that is permitted to be given where there is a delay in prosecuting an offence is governed by s 132BA of the Act.  Pursuant to s 132BA(2) of the Act, the direction is given where the judge is satisfied “the defendant has suffered a significant forensic disadvantage because of the effects of delay in prosecuting an offence the subject of the proceeding”.
45. [45]
    The appellant’s case at the trial sought to take advantage of the fact that there was no forensic evidence to support the complainant’s evidence.  It was consistent with the primary contention put by the appellant to the jury that the incidents did not happen to rely on the lack of forensic evidence.  It was a legitimate forensic decision of the appellant’s trial counsel not to focus on any forensic disadvantage to the appellant himself caused by the delay, but to focus on how the complainant’s evidence should be viewed in the context of the lack of forensic evidence.
46. [46]
    The threshold for the giving of a direction about significant forensic disadvantage to an accused person due to the delay in prosecuting the offences is that the accused must suffer a significant forensic disadvantage and not merely a forensic disadvantage as a result: see Anderson v Tasmania [2020] TASCCA 11 at [71] and Gahani v The Queen [2022] NTCCA 13 at [155]-[168].
47. [47]
    In view of the manner in which the appellant’s case was conducted at the trial, he has not shown on this appeal that he suffered a significant forensic disadvantage due to the delay in the prosecuting the offences that would warrant a direction under s 132BA of the Act.
48. [48]
    Even if the threshold were reached in this matter for the giving of the direction, the trial judge used as an example of the lack of forensic evidence because of the delay of about 10 years from the third incident the matter that had emerged in evidence during the trial of the police being unable to test for the blood smear which the complainant said was left on the wall of her room during the third incident.  The direction that the trial judge gave in the circumstances of this trial (coupled with the redirection that was related to lack of physical evidence) was adequate for the purpose of s 132BA of the Act.
49. [49]
    The appeal does not succeed on ground 3.

Ground 4 –Relationship history direction

50. [50]
    The evidence which is the subject of the appellant’s complaint was adduced by the prosecution pursuant to s 132B of the Act as relevant evidence of the history of the domestic relationship between the appellant and the complainant.  At the outset of the trial the prosecution expressly stated that the relevant evidence was being led as relationship evidence to provide the context of their relationship and not as propensity.  In addressing the jury, the prosecutor explained that the complainant’s evidence about the incident in mid-2010 helped to give “context to their relationship as a whole” and helped the jury understand that “counts 1 to 10 … didn’t occur out of the blue”.
51. [51]
    The direction was in the following terms:

“So there is a suggestion that there was some other pushing and shoving, and things like that. You just need to remember in relation to that evidence that he is only charged with the assaults that are on the indictment, and the prosecution has just led that evidence of the history of the relationship between the accused and the complainant, in which it is said that there are these other acts where there was aggression.

The prosecution simply relies on that evidence to show that he had a propensity or tendency to commit acts of violence against the complainant in circumstances where there was conflict between them, but it is for you to decide whether you are satisfied that this other conduct occurred, and if so, what you make of it.

You must not decide that the accused is guilty from only this evidence. If you are not satisfied that it shows a propensity or tendency to commit an offence of the type alleged, you must not use it to assess whether he is guilty of the offences charged. You may think that if he did these other things, that it reflects poorly upon his character, but that does not mean if you do not think that it demonstrates a propensity to commit this type – sorry, that does not matter, if you do not think it demonstrates a propensity to commit this type of offence, because we are not a court of morals. It is a court of law, so we do not judge other people’s behaviour. We are just here to work out whether they have committed an illegal act.”

52. [52]
    The appellant’s trial counsel did not seek any redirection in respect of this direction.  It is now argued that it was inappropriate for the trial judge to direct the jury to consider the relationship evidence to show that the appellant had a “propensity or tendency” to commit acts of violence against the complainant in circumstances where there was conflict between them, when the prosecution did not rely on the evidence as propensity evidence.
53. [53]
    The direction given by the trial judge was based on the direction for evidence of a domestic relationship admitted under s 132B of the Act found in Direction 70 of the Supreme and District Courts Criminal Directions Benchbook.  It was adapted for the appellant’s trial by the inclusion in the second paragraph of the circumstances “where there was conflict between them”, as the relationship evidence was limited to arguments between the appellant and the complainant where the appellant displayed aggressive behaviour.  The direction appropriately uses “propensity” to explain how the relationship evidence could be used by the jury, because one of the purposes of the evidence being adduced was to show that there were other occasions when arguments between the appellant and the complainant ended in violence.  When the prosecutor sought to adduce the evidence as relationship evidence and not propensity evidence, he was flagging for the trial judge that he was seeking a direction of the kind that was given and was not seeking to rely on the evidence as similar fact evidence in the sense of Pfennig v The Queen (1995) 182 CLR 461 as circumstantial evidence to prove the offences charged.  That indication did not preclude the use of the terms “propensity or tendency” by the trial judge in this trial to explain the use of the relationship evidence admitted under s 132B of the Act where appropriate.  See Roach v The Queen (2011) 242 CLR 610 at [40]-[42] and R v Baxter (2019) 1 QR 138 at [15]-[16].
54. [54]
    There was no error in giving the direction in the terms in which it was given.  In fact, if the trial judge had not given the direction in those terms, the jury may not have been adequately instructed on the purpose of the relationship evidence in this matter.  The appellant fails on ground 4.

Grounds 5 and 6 – Dr van Buuren’s evidence

55. [55]
    There was no objection at the trial to the evidence given by Dr van Buuren.  She was also not cross-examined.  There was no other expert evidence called at the trial contrary to that given by Dr van Buuren.
56. [56]
    Dr van Buuren’s evidence included the following.  She has over 35 years’ experience in forensic medicine.  Over about five years, she had examined 30 to 40 people following alleged non-fatal strangulation and had provided opinions in about 40 to 50 cases.  She is familiar by virtue of her experience and knowledge of the literature with respect to symptoms and other things that are consistent with a person being the subject of a non-fatal strangulation.
57. [57]
    The prosecutor recited what he described as “a scenario that we’ve heard about in this court” in the following terms.  The complainant was on a bed lying on her back and it was alleged the appellant got on top of her, so that he was straddling with her legs either side of her waist, and he put his hands around her neck in a V-shape with a bit of pressure on the sides of her neck, the complainant found it difficult to breathe and tried to pry the appellant’s hands off her neck and spoke of seeing some white spots in her vision before blacking out.  On the basis of this history, Dr van Buuren was asked by the prosecutor whether someone could fall into a state of unconsciousness, as a result of that act.  Her answer was in the affirmative, stating:

“There are number of ways in which that can happen. The underlying problem or the cause is that the oxygen supply to the brain is reduced or cut off, and that can happen either if there is obstruction of the airway at the front of the neck, or if there is pressure and obstruction of the carotid arteries on each side of the neck. The carotid artery are those arteries which carry oxygenated blood from the heart up to the brain.”

58. [58]
    Dr van Buuren explained that the brain is the organ which is most reliant on oxygen and glucose to function and that there are signs or symptoms which follow, when the oxygen supply is cut off to the brain.  In response to a question as to what part of the neck would be impacted to cause pain on swallowing, Dr van Buuren stated:

“When pressure is applied to the front of the neck, there’s a structure called the oesophagus, or the gullet. It’s the tube through which we swallow food, and it sits in between the trachea, or the windpipe, and the cervical vertebrae, which are the neck bones. When you compress the airway, the oesophagus, or the gullet, is compressed against the bones at the back of the neck. And so there is a – a trauma or bruising of those – the oesophagus. It is not unusual for people following non‑fatal strangulations to complain of painful swallowing. And it varies between different studies but it’s of a prevalence of around 20 per cent.”

59. [59]
    Dr van Buuren also stated that the obstruction of arterial flow at the site of the neck requires a pressure of about 11 pounds per square inch (psi) and that the average male handshake has a pressure of about 80 to 100 psi.  Dr van Buuren stated that it is also not unusual for people following a non-fatal strangulation to report visual disturbances, such as black spots, white spots or tunnelled vision, that was not unusual preceding loss of consciousness, and that in the literature it was anywhere from about three to 10 per cent.  Dr van Buuren was then asked whether the person could have a visual disturbance but not fall into unconsciousness.  Her answer was in the affirmative, stating:

“It really depends on how long the pressure is applied and what the effect of pressure on the carotid artery is in terms of blood flow. So it’s not always an absolute cessation of blood flow. It can be a partial cessation. And it also depends on what areas of the brain are [a]ffected. But you can have just visual disturbances without loss of consciousness.”

60. [60]
    One of the complaints made on behalf of the appellant on the appeal was the use of the word “unconsciousness” by the prosecutor in asking questions of Dr van Buuren, rather than the expression “blacking out”.  The complainant did not use “blacking out” in her evidence, but rather the expression “it just went dark” followed by a description of then “sort of waking up”.  When the prosecutor asked a further question of the complainant about the third incident, he framed it in terms of “At any stage did you consent to him choking you to the point of unconsciousness?” to which the complainant answered “No”.  There was no objection to the question being asked using the word “unconsciousness”.  The complainant must have understood the question and after all, “blacking out” is merely a colloquial expression for temporary unconsciousness.  Nothing therefore turns on the prosecutor’s not using the exact words of the complainant to describe “unconsciousness” in asking questions of Dr van Buuren.
61. [61]
    Dr van Buuren also noted that some people have reported being choked or strangled and have no symptoms and no injuries.  The prosecutor asked Dr van Buuren whether there was some sort of pattern of symptoms that are usual in non-fatal strangulation and, on the basis of a study done in the 1940s where the oxygen supply to the brain was cut off and also in watching videos where chokeholds were applied, Dr van Buuren responded:

“… there is that definite pattern that is followed where you’ll see sudden staring of the eyes. And it’s usually following that that patients will tell you that they experienced those visual symptoms. And then a – into loss of consciousness and then possibly fitting.”

62. [62]
    In his address to the jury, the prosecutor at the trial relied on Dr van Buuren’s evidence of the usual progression of events where there is an application of force to the sides of a person’s neck as support, medically speaking, for the symptoms that the complainant described as a result of the appellant’s putting pressure on her neck.  Consistent with the appellant’s case at trial, the appellant’s trial counsel made no express submission to the jury in respect of Dr van Buuren’s evidence.  There was a broad submission made that there was nothing to support the prosecution case other than the complainant’s account and the appellant’s trial counsel then argued:

“There is no forensic evidence of any kind. There is no independent factual objective evidence whatsoever.”

63. [63]
    The trial judge did not give the usual expert evidence direction, but did point out to the jury, after repeating the appellant’s trial counsel’s argument that there was no evidence that supported the complainant, that:

“The medical evidence that you have heard … from the doctor was really just general evidence about injuries, but … it is not supporting evidence for the complainant …”

64. [64]
    This direction therefore had the effect of endorsing the appellant’s trial counsel’s argument that there was no evidence that supported the complainant.
65. [65]
    There is no challenge on this appeal to Dr van Buuren’s expertise.  The appellant submits, however, that the evidence was either inadmissible or should have been excluded on the basis that it was more prejudicial than probative.  There were three aspects of Dr van Buuren’s evidence identified by the appellant’s counsel on this appeal as of concern.  The first was that the complainant’s account was not put to the complainant verbatim, but was summarised.  The second was that no evidence of the duration of the incident was put to Dr van Buuren.  The last was that the propositions from the complainant’s account were largely put to Dr van Buuren as facts proved rather than in terms of “If it is accepted that …”.
66. [66]
    In relation to the second aspect, as the complainant did say in her evidence that the chokehold lasted for 10 to 15 seconds, for completeness that should have been put by the prosecutor to Dr van Buuren as part of the “scenario”.  It was a matter, however, on which Dr van Buuren could have been cross-examined, if it were considered relevant to do so at the trial.  In any case, it was clear from Dr van Buuren’s evidence that the symptoms of a person’s being subjected to a chokehold depended on how long the pressure was applied and also the degree of the pressure (as to whether it caused a partial or total cessation of blood flow to the brain).  Putting the estimated duration of the chokehold from the complainant’s evidence to Dr van Buuren was only part of the relevant information, as was apparent from Dr van Buuren’s evidence.
67. [67]
    In relation to the first and third aspects, as the prosecutor’s putting of the scenario to Dr van Buuren made it clear that it was taken from the complainant’s evidence, the fact that the prosecutor did not put the summary in terms of “If it is accepted that” did not make any difference.  The scenario put to Dr van Buuren was a fair reflection of the complainant’s evidence in relation to count 5 for the purpose of eliciting the expert evidence from Dr van Buuren.
68. [68]
    On the question of admissibility, the appellant seeks to draw a parallel with the consideration of expert evidence in R v LM [2004] QCA 192 at [65]-[68].  The issue in LM was whether evidence given by the psychiatrist of a particular syndrome was in respect of a psychiatrically identifiable illness or in respect of a behaviour that did not require particular special knowledge or experience to understand.  When LM was decided, the particular syndrome was not a recognised psychiatric disorder or mental illness: see LM at [7].  The evidence in LM was found to be inadmissible, as it did not relate to an organised or recognised reliable body of knowledge or experience and therefore could not be the subject of expert evidence: see Osland v The Queen (1998) 197 CLR 316, 336.
69. [69]
    In contrast, it was within Dr van Buuren’s knowledge of, and experience in, forensic medicine to provide an opinion on the common symptoms or progression of symptoms associated with a chokehold as described by the complainant in her evidence.  The common symptoms or progression of symptoms from such a chokehold and the medical explanation for them are matters outside the experience of ordinary persons.  The evidence was therefore admissible as expert evidence.
70. [70]
    No application was made on the appellant’s behalf at the trial to exclude the evidence on the basis it was unfairly prejudicial for its probative value.  That was consistent with the defence approach at the trial that the incidents had not occurred.  That evidence could not be characterised as more prejudicial than probative in the context of the defence case at the trial.  There was no miscarriage of justice caused by the admission of Dr van Buuren’s evidence.  The appellant therefore does not succeed on ground 5.
71. [71]
    Ground 6 concerns the fact that the trial judge did not give any direction to the jury regarding the nature of Dr van Buuren’s evidence as expert evidence and the use that could be made of it by them.  The risk identified by the appellant for the purpose of this ground is that the jury may have impermissibly applied Dr van Buuren’s evidence to bolster the evidence of the complainant, rather than first ensuring that the facts relied upon by Dr van Buuren to express her opinion were proved.
72. [72]
    Although there was no explanation by the trial judge that an expert is permitted to express an opinion on matters within the field of the expert’s expertise, it was apparent from the prosecutor’s questions for the purpose of qualifying Dr van Buuren before the jury that she was giving evidence as an expert in forensic medicine.  Where the primary issue in this trial was whether the jury accepted the complainant’s evidence of the conduct relevant to each count as being reliable and credible, and the jury were directed in emphatic terms that they could not convict the appellant on any count unless they were satisfied beyond reasonable doubt of the reliability and credibility of the complainant’s evidence in relation to that count, there was no real risk that they would have applied Dr van Buuren’s evidence in considering whether count 5 was proved, unless they had first accepted the complainant’s evidence in respect of the occurrence of the choking incident.  Dr van Buuren’s evidence only was relevant as an explanation for the symptoms described by the complainant, if the complainant’s evidence as to the manner in which the appellant’s conduct caused her to suffer those symptoms was accepted as credible and reliable.
73. [73]
    When the trial judge expressly told the jury that Dr van Buuren’s evidence was general evidence only about injuries and “not supporting evidence for the complainant” consistent with the general submission made by the appellant’s trial counsel that there was no evidence that supported the complainant, any risk arising from Dr van Buuren’s evidence that it would be treated by the jury as bolstering the evidence of the complainant before the jury accepted the complainant’s evidence was addressed.  There was therefore no miscarriage of justice due to the limited direction given by the trial judge in respect of Dr van Buuren’s evidence in the context of the other directions given at the trial.
74. [74]
    The appellant fails on ground 6.

Order

75. [75]
    The appellant has not succeeded on any of the grounds of appeal.  It follows that the appeal must be dismissed.