R v KBB[2022] QCA 273

SUPREME COURT OF QUEENSLAND

1. [1]
   McMURDO JA:  The appellant was tried by a jury on three charges of offences committed on the same day against his then partner.  He was convicted on the first count on the indictment, which was an offence of strangulation in a domestic setting.  He was acquitted on counts 2 and 3, which were respectively an offence of suffocation in a domestic setting and an offence of an assault occasioning bodily harm while armed.
2. [2]
   He appeals against his conviction on two grounds:

1. The verdict of the jury was unreasonable in that it was inconsistent with the verdicts of acquittal.
2. There was an error of law in the admission of evidence of prior acts of domestic violence to demonstrate a propensity of the appellant to commit violence in a domestic relationship.

The evidence

3. [3]
   There were four witnesses in the prosecution case: the complainant, her mother, a doctor who examined her at the hospital to which she was taken on the day in question and a person who gave evidence of previous episodes of violence between the couple.  The appellant did not give or call evidence.
4. [4]
   The facts of the offending were described in the complainant’s evidence as follows.  On the day prior to the events in question, the appellant attempted to inspect the complainant’s phone when they were in a car which she was driving.  She objected to his doing so, and stopped the car and wrestled with him to retrieve the phone.  In the course of that struggle, she said, she scratched his face with her ring.  The appellant and the complainant then lived together, and when they arrived home they continued to argue.
5. [5]
   Early on the following morning, he again requested access to her phone, which this time she provided.  However they then argued about what that may or may not have revealed, with allegations by him of unfaithfulness and denials by her.
6. [6]
   During that argument, as the appellant moved towards the complainant, she slapped him in the face.  At that point the appellant grabbed the complainant by her hair and her throat, such that she could not breathe.  She described his right arm being around her throat and his other hand grabbing a clump of her hair.  It was that act which constituted the offence charged by count 1.
7. [7]
   In the same incident, the complainant was then thrown onto the bed and was winded by an impact to the side of her ribs.  The appellant grabbed her with one hand around her body and the other hand covering her nose and mouth such that she could not breathe.  It was that act of suffocation which was charged by count 2.
8. [8]
   The appellant eventually stopped this attack, about five minutes after it had started.  The complainant got up from the floor and began to pack her bags to leave the house.  The appellant followed her, wanting to continue the argument.  He stopped her in the hallway and grabbed her by the throat, and he then threw his drink (bourbon and coke) in her face and hit her on the head with the glass.  She fell unconscious as a result of that blow.  She awoke on the floor and then managed to lock the appellant out of the house.  She called her mother for assistance and left the house herself.  She went to an emergency department at a local hospital where she was examined by the doctor, Dr Lim.
9. [9]
   The appellant’s case, as put to the complainant in cross-examination, was that the events the subject of counts 1 and 2 had not occurred.  As to the incident involving the glass, which was the subject of count 3, it was suggested that whilst there had been an incident in which she was injured by a glass, that had been accidental and had occurred in the course of a struggle where she had refused to give him his car keys.
10. [10]
    The complainant gave evidence of four other (uncharged) episodes of domestic violence which had occurred prior to the subject events.  The first occurred about six months earlier when the appellant and the complainant were in a taxi together and they argued after he had demanded to inspect her phone.  On that occasion, when she refused, he bit her on the shoulder and punched her on the jaw, and when they got home, they further argued and he strangled her by pushing her up against a wall and lifting her off the ground by her throat.
11. [11]
    She described an incident some weeks later, when he accused her of sleeping with another man and again demanded to see her phone.  She allowed him to do so, and he then accused her of having deleted material from the phone.  He smashed her phone and threw a dinner plate at her face.
12. [12]
    In a subsequent incident, when the couple were temporarily living apart, they met up at a local sports club.  He became intoxicated and smashed her phone against a wall.  Later that night, at the appellant’s house, he showed her a video of himself and another woman having sex.  The complainant said that she became angry and in response the appellant strangled and choked her.  Their struggle also involved the complainant hitting the appellant over the head with a table lamp and the appellant smashing his own television.
13. [13]
    She related a fourth incident, a few months prior to the subject events, when he accused her of being pregnant to someone else.  She said he threw a sandwich in her face and then strangled her.
14. [14]
    In cross-examination, it was put to her that these uncharged acts had not occurred although, it was suggested, she had been violent during arguments between them.
15. [15]
    Dr Lim’s evidence was that he examined her when she arrived at the Redcliffe Hospital on the day of the events.  He observed that she had bruising to her upper thorax and some abrasion to her neck but no obvious bruising or clots in that area.  There were no injuries which he could see on his initial examination of her head.  Some weeks later he received some photographs from police, which had been taken on the day of the relevant events.  He said that they showed a pattern of bruising around her neck which “could potentially be consistent with strangulation”, as well as the presence of bruising on both sides of the neck.  He explained that bruising does not always appear immediately so that his interpretation of the photographs was not inconsistent with his examination.  Dr Lim also identified a bruise on the back of the complainant’s head in another photograph, which had been taken on that afternoon at the house of the complainant’s mother.
16. [16]
    The complainant’s mother testified that on the morning of the relevant events, she received a call from her daughter who sounded frightened and upset.  The mother immediately drove to where the complainant was living, where she saw the complainant coming out of the house with two large bags.  She and her daughter then left immediately.  At the same time the mother contacted Queensland Ambulance Service which took the complainant from her mother’s house to the hospital.  By that time, the mother said, she had seen marks around the complainant’s neck.  She identified the photographs which were taken of the complainant’s injuries on that day at the hospital.  She identified a further photograph as one of her daughter’s head, taken at her house on that afternoon.  The complainant’s mother was not cross-examined.

The course of the trial

17. [17]
    The evidence concluded on the morning of the second day of the trial.  The defence and prosecution addresses were given on that afternoon and the summing up commenced on the following morning.  The jury was sent out to deliberate later that morning, after which they sent several questions, each of which apparently related to count 3 and which was answered by a re-direction.  The jury returned with their verdicts at the end of the afternoon on the third day of the trial.
18. [18]
    In relation to count 3, the jury also returned verdicts of acquittal on alternative charges of assault occasioning bodily harm and common assault.

The first ground of appeal

19. [19]
    It is submitted that there is no rational way to reconcile the acquittals on counts 2 and 3 with the conviction on count 1.  All three counts relied upon an acceptance of the complainant as a credible and reliable witness in relation to what occurred in what is said to have been the same incident.  A doubt about the complainant’s evidence about what she described for counts 2 and 3, it is said, should have resulted in a similar doubt about her evidence about count 1.
20. [20]
    In MacKenzie v The Queen,^[1] Gaudron, Gummow and Kirby JJ discussed the reluctance of courts of criminal appeal to accept a submission that verdicts are inconsistent in a factual sense:

“[T]he respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt.”

(Citations omitted.)

21. [21]
    In the later case of MFA v The Queen,^[2] Gleeson CJ, Hayne and Callinan JJ said:^[3]

“Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie.  They include the following.  First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count.  This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part.  Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution.  In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence.  In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant.  This may not be unreasonable.  It does not necessarily involve a rejection of the complainant's evidence.  A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt.  The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution.  A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant.”

22. [22]
    Counsel for the appellant placed particular reliance upon what they said was the effect of the judgment of the High Court in Jones v The Queen.^[4]  In that case the appellant was charged with three acts of sexual intercourse with a female child, and the proof of each offence depended upon the complainant’s evidence.  The jury acquitted the appellant on the second count but convicted him upon the first and third counts.  By majority, the High Court set aside the convictions on the basis that they were unsafe and unsatisfactory.
23. [23]
    Jones was determined by reference to the Court’s judgment in M v The Queen,^[5] and not by reference to MacKenzie which the Court had decided a year earlier.  In Jones, the complainant’s evidence was contradicted by evidence by the appellant, whose case was supported by other witnesses who testified that he had had no opportunity to commit the offences that were the subject of the first and second counts.^[6]  It was in the context of that question and that evidence that the significance of the jury’s acquittal on the second count had to be considered.  Gaudron, McHugh and Gummow JJ said that the jury’s rejection of the complainant’s account on the second count diminished her overall credibility.^[7]  They said that it was difficult to then see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts, where there was nothing in the complainant’s evidence or the surrounding circumstances which gave any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count.^[8]  They concluded as follows:^[9]

“In our opinion, the proper application of the test formulated by the majority of this Court in M required the convictions of the appellant to be set aside on the basis that they were unsafe and unsatisfactory. Given the jury's finding on the second count, it was not open to them, on the whole of the evidence, to be satisfied beyond reasonable doubt of the guilt of the appellant on the first and third counts. Once the jury found that the evidence of the complainant with respect to the second count lacked sufficient cogency to convict, the Crown case on the first and third counts wore a different complexion. For it meant that, when her evidence could be set against other reliable evidence, it failed to carry sufficient conviction to reach the criminal standard of proof.”

(Emphasis added.)

24. [24]
    In MFA, McHugh, Gummow and Kirby JJ explained an error of some courts to that point in time, in the effect which they attributed to Jones.  They said:^[10]

“It appears from the review of decisions of trial judges and intermediate appellate courts undertaken in Markuleski that some judges have taken Jones as authority for the proposition that where multiple offences are alleged involving the one complainant, then verdicts of not guilty on some counts necessarily reflect a view that the complainant was untruthful or unreliable, and that an appellate court should consider the reasonableness of guilty verdicts on the basis that the complainant is a person of damaged credibility. That view is erroneous. It overlooks the attention to factual detail in the reasoning of Jones. It also overlooks the principles stated in MacKenzie, which were not qualified in Jones, and the considerations mentioned in the preceding paragraph in these reasons.”^[11]

25. [25]
    It was open to the jury to accept the evidence of Dr Lim that, from the photographs taken at the hospital, there was evident bruising on both sides of the complainant’s neck.  This was supported by the evidence of the complainant’s mother that she had seen marks around the complainant’s neck.  This evidence provided independent support for the complainant’s testimony in relation to count 1.  The same could not be said of her evidence relevant to count 2.  Her evidence about count 3 was supported by a photograph of a bruise at the back of her head.  However that was equally consistent with her having been accidentally struck with a glass, which was the appellant’s case.  In that way, the evidence of the injury did not provide the independent support for count 3 which the prosecution case had for count 1.
26. [26]
    Some, or all, of the members of the jury may have considered that they required some independent support from other evidence before they could be satisfied beyond reasonable doubt on the complainant’s word, and that their requirement was satisfied only on count 1.  This was not necessarily a rejection of her evidence.
27. [27]
    Consequently, there is a proper way in which the verdicts may be reconciled, and there is no inconsistency from which it is to be concluded that the jury unreasonably convicted on count 1.  The first ground of appeal fails.

The second ground of appeal: a challenge to a pretrial ruling

28. [28]
    The second ground complains of a pre-trial ruling (by another judge) to admit the evidence of prior acts of domestic violence.  The ruling was the subject of a written judgment delivered a week prior to the trial.
29. [29]
    The judge noted the prosecution’s submission that the evidence was admissible under s 132B of the Evidence Act 1977 (Qld) “and as evidence of propensity or similar conduct”.  He also noted the submission that the evidence was also relevant because it explained the context in which the alleged offending occurred so that the complainant’s evidence would not appear to be “out of the blue”.  However, it seemed to the judge that the evidence of prior acts of violence by the appellant against the complainant did “not assist in the evaluation of the evidence more directly relevant to the charges unless it is to prove that the applicant had a propensity to jealous or controlling violence against the complainant”.
30. [30]
    The judge noted a submission for the appellant that the evidence lacked the necessary cogency to amount to proof of a relevant propensity or strikingly similar conduct.  He concluded that “the challenged evidence demonstrates a relevant propensity to violence in the domestic relationship, including by choking and/or suffocating, associated with controlling behaviour, such as demands to see the complainant’s phone, and on two of the four relevant occasions damaging the phone.”  He held that there was “no reasonable view of the challenged evidence other than as supporting the conclusion that the applicant committed the acts constituting the offences charged”, from which it followed that the evidence was admissible and the application to exclude it was refused.
31. [31]
    The evidence was admitted under s 132B which provides:

“(1) This section applies to a criminal proceeding against a person for an offence defined in the Criminal Code, chapters 28 to 30.

2. (2)
   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.

3. (3)
   In this section—

domestic relationship means a relevant relationship under the Domestic and Family Violence Protection Act 2012, section 13.

Note—

Under the Domestic and Family Violence Protection Act 2012, section 13, a relevant relationship means an intimate personal relationship, a family relationship or an informal care relationship, as defined under that Act.”

32. [32]
    The offences the subject of this case are defined within chapters 28 to 30 of the Criminal Code.  The appellant and the complainant were at relevant times in a domestic relationship as defined.  The evidence was admissible under s 132B if it was relevant evidence of the history of their domestic relationship.
33. [33]
    In Roach v The Queen,^[12] the High Court considered s 132B, and its effect in combination with s 130 of the Evidence Act.  Section 130 provides that nothing in the Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence.  The Court held that the rule in Pfennig v The Queen^[13] could not be imported into ss 130 and 132B, and that the rule had no application to evidence which satisfied the test of relevance.  In the joint judgment of French CJ, Hayne, Crennan and Kiefel JJ, the ways in which evidence of the history of a domestic relationship might be relevant, and the inapplicability of the rule in Pfennig were explained:^[14]

“It should first be observed that the text of ss 130 and 132B does not contain any suggestion that the test in Pfennig is to be applied. Evidence of the kind contemplated by s 132B – of other acts of domestic violence in the history of a relationship – may clearly enough qualify as similar fact evidence which might, in a particular case, be tendered as proof of an accused's propensity. It may also be relevant as evidence of a person's state of mind, or as part of the res gestae, which is to say, part of the circumstances of the crime.  Its further possible relevance, to show the kind of relationship the complainant and the accused had and its use to assist in the evaluation of the complainant's evidence, will be discussed later in these reasons.  And, in cases where the recipient of domestic violence is accused of an offence against the perpetrator of the violence, the evidence may be relevant and admissible to a plea of provocation or self-defence.

The section therefore has a potentially wide operation.  It is not restricted in its application to similar fact evidence tendered to prove propensity on the part of the accused, which is the focus of this appeal.  Its purpose is to ensure that in criminal trials evidence of the history of domestic violence is put before a jury, or other arbiter of fact, so long as it is relevant to an issue in those proceedings.  Relevance is the only requirement stated for admissibility.  It may be assumed that that legislative choice was made with knowledge of the decision in Pfennig, which had been made some two years earlier and which effected an important change.  It was not necessary for the rule in that case to be expressly excluded, as the appellant submitted.  The sole basis to be applied for admissibility, relevance, is clearly stated.”

34. [34]
    Importantly, one of the ways in which the evidence might be relevant, according to that passage, was as proof of an accused’s propensity.  In Roach, this Court had concluded that notwithstanding the prosecution’s disavowal of any reliance upon the evidence there as proof of the appellant’s propensity, the evidence in question was relevant as propensity evidence rather than as “relationship” evidence.^[15]  The evidence had been admitted by the trial judge upon the basis that it was relevant as the prosecution had contended, namely as showing the violent nature of the relationship between the parties, without which 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.  It was that relevance which was preferred by the High Court.^[16]
35. [35]
    Notwithstanding the High Court’s characterisation of the evidence as relationship evidence rather than propensity evidence, it cannot be accepted that the Court’s interpretation of ss 130 and 132 is not to be applied in the present case where the evidence was admitted as propensity evidence.
36. [36]
    In Perry v The Queen,^[17] Gibbs CJ observed that the common law rule which determines the admissibility of similar fact evidence is one which, subject to certain exceptions, requires the exclusion of evidence not because it is irrelevant, but because it is likely to be unfairly prejudicial to the accused, or in other words, that it is likely to be misused by a jury.  The common law rule of admissibility, as subsequently propounded in Hoch v The Queen^[18] and confirmed in Pfennig v The Queen,^[19] Phillips v The Queen^[20] and R v Bauer,^[21] is an exclusionary rule.  Roach v The Queen is binding authority for the displacement of the rule in the operation of ss 130 and 132B.  Once the evidence is relevant, it is admissible (under s 132B) subject only to the discretion to exclude it on the ground of unfairness according to s 130.^[22]  That question of unfairness “would ordinarily be resolved by reference to the common law principle, expressed as the exercise of a discretion, that the probative value of the evidence in question must exceed the potential prejudice of the accused if the evidence is not to be excluded.”^[23]  The rule in Pfennig^[24] addressed the problem or unfairness in quite a different way.^[25]
37. [37]
    In the present case, no argument was made for the exclusion of the evidence under s 130.  That being the case, there was no error of law in the judge’s ruling that the evidence could be adduced at the trial.  Nor is there any argument in this Court to the effect that the admission of the evidence resulted in a miscarriage of justice, upon the basis that there was no rational explanation for counsel not seeking to have the evidence excluded under the discretion conferred by s 130.
38. [38]
    Nevertheless, it is submitted that the evidence ought not to have been admitted without that satisfying the Pfennig test, according to the joint judgment in R v WBN.^[26]  As should appear, that submission cannot be accepted.^[27]  The second ground of appeal fails.

Conclusion

39. [39]
    I would order that the appeal against conviction be dismissed.
40. [40]
    FLANAGAN JA:  I agree with McMurdo JA.
41. [41]
    FREEBURN J:  I agree with the reasons for judgment of McMurdo JA and the order proposed by his Honour.