R v WBZ[2023] QCA 256

SUPREME COURT OF QUEENSLAND

1. [1]
   FLANAGAN JA: On the first day of a three day trial before his Honour Judge Kent KC, the appellant was arraigned in relation to a seven count indictment. The indictment contained offences of common assault (counts 1 and 5), assault occasioning bodily harm (counts 2 and 4), strangulation in a domestic setting (counts 3 and 7) and wilful damage (count 6). Each of these offences were alleged to be domestic violence offences.
2. [2]
   The appellant and the complainant had been in a domestic relationship from October or November 2016 to 2 January 2021.
3. [3]
   The seven counts involved two separate incidents. The first three counts were alleged to have been committed on 13 September 2020, with the remaining four counts alleged to have been committed on 2 January 2021.
4. [4]
   The Crown particularised the counts as follows:^[1]

Count 1: Common assault – grabbing of hair and twisting

Count 2: Assault occasioning bodily harm – kick to the face

Count 3: Strangulation on shoe box

Count 4: Assault occasioning bodily harm – backhand in the car

Count 5: Common assault – push/throw to ground

Count 6: Wilful damage – mobile phone

Count 7: Strangulation – Pajero

5. [5]
   The jury found the appellant guilty of counts 3 and 6 and not guilty of counts 1, 2, 4, 5 and 7.  The appellant was sentenced to two years imprisonment for count 3 and three months imprisonment for count 6, with a parole release date fixed at 19 January 2024.
6. [6]
   The appellant appeals against his conviction for count 3 on the basis that the verdict of the jury for count 3 is unreasonable in that it is irreconcilable with the verdicts of acquittal for counts 1, 2, 4, 5 and 7.
7. [7]
   In MFA v The Queen,^[2] Gleeson CJ, Hayne and Callinan JJ observed:

“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. It may simply reflect a cautious approach to the discharge of a heavy responsibility.”

8. [8]
   In R v GAW,^[3] Philippides JA (with whom Margaret McMurdo P and Holmes JA agreed) summarised the principles concerning inconsistent verdicts as follows (original footnotes):

“The principles concerning inconsistent verdicts are well-established.^[4] Where alleged inconsistency arises in the jury verdicts upon different counts affecting an accused, the test is one of ‘logic and reasonableness’; that is, whether the party alleging inconsistency has satisfied the court that the verdicts cannot stand together because ‘no reasonable jury, who had applied their mind properly to the facts in the case could have arrived’ at them.^[5]

However, respect for the jury’s function results in a reluctance in appellate courts accepting a submission that verdicts are inconsistent in the relevant sense, so that:^[6]

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

In that regard, ‘the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt’.^[7] Alternatively, the appellate court may conclude that the jury took a merciful view of the facts on one count; a function which has always been open to a jury.^[8]

It is only where the inconsistency rises to the point that the appellate court considers intervention is necessary to prevent possible injustice that the relevant conviction will be set aside.^[9] While it is impossible to state hard and fast rules, the following provide examples of relevant inconsistency;^[10] where the different verdicts returned by the jury are an affront to logic and common sense which is unacceptable, and strongly suggests a compromise in the performance of the jury’s duty, or which suggests confusion in the minds of the jury, or a misunderstanding of their function, or uncertainty about the legal difference between specific offences, or a lack of clarity in the instruction on the applicable law.

9. [9]
   In R v Fanning,^[11] Morrison JA (with whom Sofronoff P and McMurdo JA agreed) summarised various matters of principle concerning the assessment by an appellate court of the issue of inconsistent verdicts as follows (footnotes omitted):

“(c) if there is a proper way by which an appellate court can reconcile the verdicts, appellate courts should accept the jury as having performed its function and be reluctant to accept a submission that verdicts are inconsistent;

4. different verdicts may be a consequence of a jury correctly following instructions to consider each count separately, and to apply the requirement that all elements must be proved beyond reasonable doubt;

5. different verdicts will show the required inconsistency where a verdict of acquittal necessarily demonstrates that the jury did not accept evidence which needed to be accepted to lead to the other verdict of guilty;

6. a jury may decide that it would be oppressive to convict on all charges and give a ‘merciful verdict’;

7. a jury might find the quality of a crucial witness’s evidence variable, even though it is accepted as generally truthful; some aspect of the evidence might point to faulty recollection on some points, or exaggeration on others, or an inherent unlikelihood about some aspect of the evidence, all of which casts doubt on the accuracy in those respects, but not of the witness’s general honesty;

8. in some cases it is possible that in respect of some counts there might be contradictory evidence which does not apply to other counts, and thus explains the variation in the verdicts; and

9. it may be in some cases that the different verdicts are explicable on the basis that there was corroboration in respect of some counts, but not others.

10. [10]
    When the above principles are applied to the facts and circumstances of the present case, the jury’s verdict for count 3 cannot properly be considered unreasonable. The verdicts may be reconciled on a number of bases, including that the complainant’s evidence for count 3 was independently corroborated. Further, for counts 1, 2 and 5, each of which concerned an element of assault, the jury were directed in relation to the defence of provocation.

The evidence

The complainant

11. [11]
    In 2020 the complainant was living with the appellant together with two children; the appellant’s three year old son from a previous relationship and their infant daughter who was approximately two months old.
12. [12]
    On the night of 13 September 2020 the complainant and the appellant were at dinner with the appellant’s boss. An argument ensued because the complainant wanted to go home. On arriving home, the son was put to bed and the complainant was attempting to feed her infant daughter who had “feeding issues”. The complainant suggested that the appellant should sleep in the spare room. When the appellant suggested to her that she should go into the spare room, the complainant hit the appellant on the arm and said “are you fucking kidding me”. The appellant got up and walked around to her side of the bed, grabbed her hair and pulled it back. This conduct constituted count 1 for which the appellant was found not guilty.
13. [13]
    The appellant then grabbed the baby and was holding her in his left arm. He walked out of the bedroom and was followed by the complainant. They continued to argue. The complainant told the appellant to give back the baby. The complainant gave evidence that she may have provoked the appellant:^[12]

“… Yeah, we had an argument – like, I – I can’t quite remember exactly what we were – like, what I was saying to him but I probably – like, I could’ve provoked him by maybe insinuating he was going to hurt [the baby] or – or me. I don’t know. I provoked him someway and that’s when he threw me to the floor near the couch.”

14. [14]
    When the complainant tried to get up from the floor, the appellant kicked her in the face which she described as a contact between the bridge of the appellant’s bare foot and her mouth. This conduct constituted count 2 for which the appellant was found not guilty. The complainant did not know whether she lost consciousness, but she described her teeth going through the inside of her lip and that she had blood on her nightie and there were a few drops on the ground. She was not entirely certain, but she thought she had this injury for a few days but did not seek medical assistance.
15. [15]
    After being kicked, she crawled over and sat on a wooden shoebox. The appellant came over to her. He grabbed the complainant around her neck with his right hand tightly. He was still holding the baby in his left arm. He pushed on the complainant’s neck and pushed her against the wall. She could not breathe but did not pass out. She thought the appellant had his right hand around her throat for 20 to 30 seconds. He let go and returned to the bedroom with the baby. This conduct constituted count 3 for which the appellant was found guilty.
16. [16]
    The complainant left the house and telephoned Mr S who owned the house in which the complainant and the appellant resided. In the meantime, the appellant had locked the complainant out of the house. When she called Mr S, she told him that the appellant would not let her back into the house. When Mr S arrived at the house, the appellant came out, saw Mr S and said “oh for fuck’s sake”. He then got into his vehicle and drove directly through a closed gate and out of the property.
17. [17]
    The complainant took a photograph of the injury to her face and chin the following evening and sent it to her mother. She told her mother that she had fallen over in the bath. This photograph is Exhibit 1 and shows a cut to the inner top lip and a small bruise to the left side of the complainant’s chin. When shown Exhibit 1, the complainant also identified a small bruise on her throat.
18. [18]
    The complainant did not tell any person about the appellant’s conduct on 13 September 2020 and made no complaint to the police.
19. [19]
    On 15 September 2020 the complainant visited friends, Mr and Mrs K, who both gave evidence at trial.
20. [20]
    As to the alleged offending that occurred on 2 January 2021, the complainant and the appellant had been visiting friends in Sarina. They were driving back to Emerald. The complainant was in the front passenger seat and the appellant was driving. She described them as being “just snotty” at each other.^[13] The complainant suggested they should have a break from their relationship. An argument ensued. According to the complainant, at some point in the course of driving the appellant backhanded the complainant. This caused the complainant to have a sore lip with a little bit of bleeding. The backhand caused a cut inside her mouth. This conduct constituted count 4 for which the appellant was found not guilty. When they arrived home, they continued to argue. The complainant took the baby and asked the appellant to unpack the car. He started throwing items from the car onto the ground. He also threw the wheels of the pram across the yard. This riled the complainant and matters escalated.
21. [21]
    The complainant’s evidence as to the conduct constituting counts 5 and 7 was as follows:^[14]

“What happened after that?---We - we just got into an argument and yeah. We just got into an argument in the front - like, near the front door and he shoved me, and shoved me onto the ground outside, and yeah. I just hit the ground. I didn’t - like, I didn’t hit my head or anything. I just hit the ground.

You said he shoved you to the ground. How did he do that?---Just, like, the back of my - the back of my shoulder, the back of my - my hair - back of my shoulder, yeah.

All right. And you went to the ground?---Yep.

You said you didn’t hit your head?---No.

And what happened whilst you were on the ground or what happened next?---Nothing. I just got up, yeah. And, yeah, he had [the baby] in his arms or his arm, and yeah. He just pushed me up against the back of the Prado. We had, like, a spare tyre cover on the - the back of the Prado. We had a spare tyre with a cover on it, and just pushed me up against there with his hand on my neck. Sorry.

With his hand on your neck?---Yeah.

Yep. Did he still have [the baby] in his hand - in - - -?---Yes.

- - - his arm?---Yes.

So did he use one arm?---Yes. He had [the baby] in his left and in - he used his right.

Okay. And what did he do with his right hand?---He just put it around my neck, and the same - same as last time. Just pushed me up against the wall - the - the spare tyre cover.

Okay. And this is outside the house?---Yes.

All right. Did he apply any pressure - - -?---Yes.

- - - to your throat or neck?---Yes. Yes.

Could you breathe?---Not at the time. Like, yeah, not - not at the time. No.

All right. Could you say or do anything or were you saying or doing anything?---No.

I - my arms, like, weren’t long enough. I couldn’t - there was nothing I could do.

All right. Was he saying anything to you?---I don’t remember.

And how long did that last for?---Like 10 to 15 seconds. Yep.”

22. [22]
    In the course of this argument, the appellant threw the complainant’s phone onto the ground causing it to be damaged. This conduct constituted count 6 for which the appellant was found guilty.
23. [23]
    After the incident, the appellant booked herself into a motel. Police arrived about an hour later, having been contacted by the complainant’s parents. The police took photographs of a minor injury inside the complainant’s lip as well as two photographs of the damage to her phone.^[15]  The officers who attended upon the complainant at the motel recorded the interaction with a body-worn camera.  This recording was tendered as Exhibit 6.
24. [24]
    In cross-examination, the complainant described the circumstances leading up to the offending which occurred on 13 September 2020. She accepted that after she had asked the appellant to sleep in the other bedroom, he had told her to “fuck off”. In response, she accepted that she swung and hit him and said words to the effect of “are you kidding me”. The appellant then got out of bed and grabbed the baby. The complainant tried to retrieve the baby from the appellant’s arms. In that process, the appellant pushed her and she fell over. Later in cross-examination, the complainant suggested that rather than hitting the appellant, she had “just touched him”.^[16]
25. [25]
    As to count 1, the complainant stated that the appellant pulled her hair and twisted her neck whilst he was holding the baby and standing by the bed. These actions occurred while the complainant was lying in the bed. The complainant accepted that after she had hit the appellant, he became upset.
26. [26]
    As to count 2, she found herself on the floor after the appellant had pushed her over. It was at this stage that the appellant kicked the complainant in the mouth while she was on the floor. She accepted that the appellant had never previously kicked her. She stated that as a result of the kick, she was bleeding from the mouth and had a bit of blood on her nightie. She accepted that she had previously described the blood on her nightie as “being the size of an orange”.^[17] She stated that the photograph of the injury to her lip (Exhibit 1) was taken in the evening of the following day.^[18] She accepted that she told her mother she had fallen in the bath.
27. [27]
    As to count 3, the complainant conceded in cross-examination that in her arguments with the appellant, she generally “gave as good as she got”.^[19] In her first statement to police made on 27 April 2021, she described that after the kick to her face, she lost consciousness but came to be seated on the wooden shoebox. She could not recall if she had been able to walk to the shoebox or had crawled.^[20] In her first statement she also described the appellant at the time as looking as if he was in a rage “just very angry and psychotic”.^[21]
28. [28]
    Upon further cross-examination, the appellant’s best recollection was that she crawled to the shoebox. While on the shoebox, she continued to ask for the return of the baby. She was aware that the appellant had had two reconstruction surgeries to his right shoulder.^[22]
29. [29]
    As to count 4, the complainant stated in cross-examination that the backhand had occurred in the car during the drive home.  She disagreed with the suggestion that the appellant did not backhand her in the car on 2 January 2021 but rather outside the house during the course of their argument.^[23]
30. [30]
    As to the circumstances for count 5, the complainant accepted in cross-examination that during the course of the drive to Emerald, she and the appellant were arguing and yelling at each other. When they arrived home, the appellant took the baby and was giving her a bottle, leaving the complainant to unpack the car. The complainant at one stage was looking for the pram wheels which the appellant had thrown across the yard. She angrily enquired of him where the pram wheels were, and the arguing escalated. The appellant ended up with the baby in his left arm again and asked the complainant to leave. She did not wish to leave without the baby. She told the appellant that if he obtained a bag for her she would leave. When the appellant went to obtain a bag, the complainant locked herself in the car. She accepted that this action enraged the appellant.
31. [31]
    As to count 7, the appellant was holding the baby in his left arm. The complainant was asking him to give the baby back to her. She accepted in cross-examination that she was angry, upset and emotional. She wanted the baby returned and recalled screaming at the appellant “give her to me”.^[24] She was trying to grab hold of the baby from the appellant. They ended up at the back of the car with the appellant still holding the baby in his left arm when his right hand ended up around the complainant’s throat for approximately 10 seconds. She accepted that at this time she was “screaming, squirming, [and] abusing him”.^[25]
32. [32]
    The complainant was cross-examined at some length in relation to the police bodycam footage (Exhibit 6). The complainant did not initially accept the suggestion that she was quite calm and relaxed when speaking with police on 2 January 2021. She accepted that she did not tell them the “whole truth” but did not lie.^[26] The complainant told police that she did not wish to make a formal complaint and that the appellant was not a “bad person” but “just blows up”.^[27] The complainant also told police that she did not wish to restrict the appellant’s access to their infant daughter. When shown the bodycam footage, the complainant accepted that she was “largely calm”.^[28] The bodycam footage showed the complainant saying to police that the appellant was unpacking the car and throwing things into the house. As a result, the complainant was “boiling” and she just wanted to “explode”.^[29] She told police that when the appellant went outside and found the pram wheels, the argument escalated and she threatened to call the police. She reiterated however, that she did not tell the police the whole story because she blamed herself for stirring the appellant up.^[30] She also told police that the appellant became aggravated because she started “blowing up again”.^[31] She stated that the incident which occurred on 2 January 2021 was the worst incident that had ever happened between her and the appellant.
33. [33]
    Subsequent to the events of 2 January 2021, the complainant wished to reconcile with the appellant. In March 2021 however, she observed the appellant at a school fair with another woman. Subsequently, on 27 April 2021, she provided a statement to police where she alleged for the first time that the appellant had choked her on the night of 2 January 2021. She also recounted the incident from 13 September 2020. In her first statement to police, the complainant did not mention that she had bled from the kick to her face.^[32]
34. [34]
    In family law correspondence dated 2 June 2021, the complainant raised for the first time a concern that the appellant was a risk to their infant daughter and made allegations of non-charged incidents.
35. [35]
    On 5 October 2021 she provided a second statement to police and claimed that the police officer who took that statement “took it more seriously”.^[33]

Mr S

36. [36]
    After receiving either a phone call or a text message from the complainant on the night of 13 September 2020, Mr S travelled the short distance by vehicle to the property. He observed the complainant standing outside the front door to the house. She was wearing a nightdress and had a little blood on her lower leg beneath her knee.
37. [37]
    The complainant informed Mr S that she had been locked out of the house. The appellant came out of the house, observed Mr S standing with the complainant and said words to the effect that he was going to get a shirt and go. Mr S owns the property and observed that the gate was closed. The appellant drove through the closed gate causing damage. The complainant then went back inside the house.
38. [38]
    In cross-examination, Mr S recalls that the text message he received from the complainant requested him, when approaching the property, to use no lights and to go to the back of the shed. He recalls that he asked about the blood on her lower leg to which the complainant responded that it was the appellant’s. She said words to the effect that it was her fault. The complainant told Mr S that she was not injured. Mr S did not observe any injuries to the complainant, nor did he notice any obvious blood on her nightie.
39. [39]
    The following afternoon the complainant sent Mr S a text stating “Hey, thanks again for last night. [The appellant] is in Yeppoon for a few nights while he pulls himself together. I stirred him up and it just went south from there. I am sorry to involve you.”^[34]

Mr K

40. [40]
    Mr K and his wife are close friends of the complainant. He recalls the complainant visiting them on 15 September 2020. He observed that the complainant had bruises up her arms and on her neck. She had a puffy lip and her bottom lip looked like it was split. He described bruises on the complainant’s neck as being up the side of her neck and underneath her chin. These bruises were on one side of her neck and the front of her neck.
41. [41]
    When shown Exhibit 1 in cross-examination, Mr K thought the injury was to the bottom lip but from the photograph he accepted that it was to the top lip. He accepted that the bruises to the neck that he observed on 15 September 2020 are not visible in the photograph.
42. [42]
    The first time he was asked to recall what he observed on 15 September 2020 was when he gave his statement to police on 8 June 2021.
43. [43]
    He recalls the complainant telling his wife that she had fallen over in the bath.

Mrs K

44. [44]
    Mrs K also observed bruises up the complainant’s neck, on her arms and near the top of her chest. She also recalled the complainant having a slightly puffy lip.
45. [45]
    In cross-examination, Mrs K accepted that the most prominent bruise she spoke of her in her statement was that to the complainant’s chin. While this was probably the first thing that she noticed, Mrs K was definite that there were multiple bruises to the sides of the complainant’s neck. When the complainant came through the door, Mrs K had a side-on view and was able to observe the complainant’s neck.
46. [46]
    Mrs K did not provide a statement to police until the following year on 7 June 2021.
47. [47]
    The trial judge clarified what Mrs K had observed in relation to the complainant’s neck on 15 September 2020 compared to what was visible in the photograph:^[35]

“HIS HONOUR: You were cross-examined a moment ago about what you saw on her neck versus the photograph?---Yes.

The bruises that you saw on her neck – were they on areas of her neck that would be visible in the photograph?---Not really, no. Because her head is turned in that photo, so I’m not sure that you can see her entire neck.”

The complainant’s mother

48. [48]
    The complainant’s mother recalled being telephoned by the appellant on the afternoon of 2 January 2021. He said words to the effect that if the complainant didn’t leave, he was going to “fucking kill her”. The complainant’s mother subsequently rang the appellant back and established that the complainant had left the premises.
49. [49]
    The complainant’s mother also recalled receiving a photograph via text message from the complainant on 14 September 2020 (Exhibit 1).
50. [50]
    The complainant’s mother provided a statement to police on 20 June 2022. She recalled having a conversation with the complainant on the night of 2 January 2021. The complainant told her that she had been hit on the way home in the car and attacked and thrown to the ground when they returned home.
51. [51]
    In relation to Exhibit 1, she recalled the complainant telling her that she had fallen over in the bath. The complainant’s mother was herself very careful in getting in and out of the same bath.

The appellant’s recorded conversation with police

52. [52]
    On 2 January 2021 Senior Constable O'Neill, after speaking with the complainant, spoke to the appellant. The conversation was recorded (Exhibit 7).
53. [53]
    The appellant told police that it had been going on for months and he could not do it anymore. He accepted that he had anger issues but that the complainant knew how to “push and push and push” until she got a rise out him.^[36]
54. [54]
    He admitted “losing it” on the afternoon when they returned home and that he gave her “a backhander out of the front of the house”.^[37]
55. [55]
    The appellant stated that he was “absolutely gutted”.^[38]
56. [56]
    When informed that the complainant did not wish to make a complaint, the appellant responded that she had every right to.
57. [57]
    The appellant referred to the complainant abusing him for losing the wheels off the pram. He retrieved the wheels and threw them saying “here’s your fuckin’ wheel”.^[39] He then said to the complainant “get your shit and you need to fuck off”.^[40] The argument escalated, and it was at this time that he backhanded her at the door. He denied throwing the complainant to the ground. While he accepted that he hit her, this occurred at the front of the house.
58. [58]
    The appellant could not say one way or the other whether he threw the appellant’s phone onto the ground.
59. [59]
    The appellant stated that it was the complainant who threw herself on the ground and that he picked her up by the back of her shirt and “probably her hair”.^[41]

The summing up

60. [60]
    The trial judge gave the usual directions in relation to the onus and burden of proof as well as the requirement that the jury consider each charge separately, evaluating the evidence relating to that charge.
61. [61]
    His Honour also directed the jury in relation to the defence of provocation for counts 1, 2 and 5, each of which had an element of assault. His Honour had previously ruled that the defence of provocation did not arise in relation to count 4. For count 1, the act of the complainant relied on as giving rise to the defence of provocation was the complainant hitting the appellant on the arm in the bed in the context of arguing about who was going to move into the spare bedroom. For count 2, the defence arose because the complainant insinuated that the appellant was going to hurt the baby. For count 5, the relevant act was the complainant saying to the appellant “where are the fucking pram wheels?”. As a matter of law, the defence of provocation was not available in relation to the strangulation charges, counts 3 and 7.
62. [62]
    His Honour gave a direction as to how the jury could use evidence of other violent conduct which had taken place between the appellant and the complainant. His Honour explained that if the jury was to accept this evidence, it did not make it more probable that the appellant committed the alleged offences and that the evidence was relevant only to answer questions which they might naturally have about the background to the incidents which the prosecution allege were the charged offences.
63. [63]
    His Honour gave a Robinson^[42] direction in the following terms:^[43]

“I have to give you a warning in relation to this.  I think this was foreshadowed by counsel in their addresses.  You do need to scrutinise the evidence of the complainant with great care before you could arrive at a conclusion of guilt.  That is because of [the complainant’s] admitted memory problems, her failing to mention a number of matters in her first police statement and the further details which have emerged over time.  So you should only act on her evidence if, after considering it with that warning in mind and all of the other evidence, you are nevertheless convinced of its truth and accuracy.”

64. [64]
    After the summing up, the court received two notes from the jury.  The first note enquired whether in relation to count 4 (which was particularised as assault occasioning bodily harm – backhand in the car) it was essential that the assault be proven to have occurred inside the car rather than outside of the car.^[44]  This question was answered by his Honour in the affirmative and was the subject of a re-direction in the following terms:^[45]

“When formulating particulars, as the Crown is required to do, they are forced to make, you know, what might be regarded as tactical decisions, and the particulars they have relied on here is consistent with what the complainant says is, which is that she was backhanded inside the car, so that is what the Crown case is. That is what they stick to, and that is what they are confined to.”

Consideration

65. [65]
    The appellant does not seek to challenge the verdict of guilty in relation to count 6 (wilful damage – mobile phone). As conceded by the appellant, the verdict of guilty “was inconsequential as it did not involve any real challenge to the credibility of the complainant”.^[46] This is an appropriate concession because the complainant’s evidence that the appellant damaged her phone by throwing it to the ground was corroborated by the two photographs taken by police of the damage to the phone (Exhibits 4 and 5).  Further, the appellant, in his recorded conversation with police, did not deny damaging the phone and could not say one way or the other whether he threw the phone to the ground.
66. [66]
    As to counts 4, 5 and 7, the circumstances of this offending are separate and distinct from the offending which occurred some three months earlier on 13 September 2020.  Unlike the previous offending, the jury were played the bodycam recording (Exhibit 6) of the conversation that occurred between police and the complainant on the night of 2 January 2021.  As well as admitting that she can “rile up” the appellant and further, that she did not wish to make a formal complaint, the complainant made no mention of the conduct constituting the strangulation offence (count 7). The circumstances of that alleged offending are only subsequently detailed by the complainant in her first statement to police on 27 April 2021. The jury, in assessing the complainant’s evidence in relation to counts 4, 5 and 7, and in considering the defence of provocation for count 5, had the benefit of not only the bodycam footage (Exhibit 6) but also the recording of the conversation between police and the appellant (Exhibit 7). This is to be contrasted with the offending constituting counts 1, 2 and 3 where there was no contemporaneous evidence as to what occurred. The complainant first raised the circumstances of the offending for counts 1, 2 and 3 in her statement to police given on 27 April 2021.
67. [67]
    Quite apart from the above considerations, there is another logical and reasonable basis on which the verdict of not guilty for count 4 may be reconciled with the verdict of guilty for count 3.  The jury had been directed to consider each count separately.  The jury had also been given a Robinson direction to carefully scrutinise the evidence of the complainant.  There was a stark inconsistency between the complainant’s recollection and the appellant’s recollection as to whether the backhanding of the complainant occurred in the car or at the front of the house. As correctly submitted by the respondent, the prosecution faced a significant problem for count 4 as the appellant had made an unprompted statement against interest as to having backhanded the complainant in circumstances different to what was particularised by the Crown.  It was evident that the jury, by the question asked, was aware that the Crown had particularised count 4 by reference to a backhand in the car and not at the front of the house.  In light of the redirection given by the trial judge, the verdict of not guilty for count 4 is readily explicable by reference to these considerations.
68. [68]
    The verdict of not guilty in relation to count 5 (common assault – push/throw to ground) may also, as a matter of logic and reasonableness, be reconciled with the verdict of guilty for count 3.  First, there was a difference in the versions given by the complainant and the appellant. The complainant’s evidence was that the appellant shoved her and she fell to the ground.  The appellant’s version was that the complainant threw herself to the ground. As correctly submitted by the respondent:^[47]

“The appellant had demonstrated that he could admit violence he had perpetrated (the backhand to the complainant) and so his denial of the specific violence alleged here helped provide the necessary doubt about the complainant’s account to acquit the appellant.”

69. [69]
    Secondly, unlike count 3 which was a strangulation offence, the jury were instructed to consider the defence of provocation in relation to count 5.  As to asking the appellant where the pram wheels were, the complainant accepted that, at the time, she may have been swearing at the appellant.  She accepted that the appellant became aggravated because she started to blow up again.  She told police that she was boiling and wanted to explode.
70. [70]
    As to count 7 (strangulation), in light of the Robinson direction, the jury in scrutinising the complainant’s evidence in relation to this alleged offending, had uncontradicted evidence before it that the complainant had not raised any allegation of strangulation in her conversation with police on 2 January 2021.  The first time that she made this allegation was in her statement of 27 April 2021.  Further, although the appellant when interviewed by police, told them that he had backhanded the complainant at the front of the house, he made no admission of strangulation.  The police were simply not in a position to put such an allegation to him as the complainant had made no such allegation.  There was no independent evidence, such as photographs or visible bruising to the neck, which supported the complainant’s version.
71. [71]
    In addition, as submitted by the respondent, the relative positions of the complainant and the appellant made it less likely that he could commit the offence due to his two shoulder reconstructions.  The complainant was standing, was up against the back of the vehicle and the appellant’s right hand was on her neck for approximately 10 seconds while he was holding the baby.
72. [72]
    In the above circumstances, the verdict of not guilty for count 7 has a logical and reasonable basis upon which it may be reconciled with the guilty verdict for count 3.
73. [73]
    Turning then to counts 1, 2 and 3.  Mr McGuire, who appeared for the appellant at the hearing of the appeal, made the following concession in relation to counts 2 and 3:^[48]

“If they’d convicted on count 2 and count 3 I wouldn’t be here, but it’s acquittal on count 2, where there was the strongest supporting evidence, which was the photograph, and they weren’t prepared to convict [the appellant] on that count, yet relied on the argument of the prosecution, relied upon the evidence, such as it is, of [Mr and Mrs K], nine months later – in a statement nine months later of some bruising to the neck that she, the complainant, didn’t even speak of.”

74. [74]
    The appellant’s primary complaint is therefore the inconsistency of the guilty verdict for count 3 with the not guilty verdicts for count 1, and in particular, count 2. The appellant submits that there is no forensic logic to justify the acceptance of the complainant’s evidence on count 3 alone and that it cannot be safely found in the evidence of Mr and Mrs K or the photograph (Exhibit 1). The appellant further submits that to acquit on counts 1 and 2, the jury must have entertained a reasonable doubt about the credibility or reliability of the complainant’s evidence for those events, or not have been satisfied beyond reasonable doubt that the prosecution had excluded the defence of provocation.^[49] The difficulty with these submissions in determining whether the verdict for count 3 was unreasonable on the basis of inconsistency is that the evidence of Mr and Mrs K as to what they observed on 15 September 2020 was before the jury.
75. [75]
    Further, it was also a matter for the jury, having been directed in relation to the defence of provocation for counts 1 and 2, to assess this defence in light of the evidence. The defence of provocation was available in respect of counts 1 and 2 but not count 3.  It was for the Crown to exclude the defence of provocation.  The complainant gave evidence that prior to the offending constituting counts 1 and 2, she did in fact hit the appellant.  She was however, not consistent in her description of this hit, suggesting in cross-examination that she only touched his arm.  The offending constituting counts 1 and 2 also occurred in the context of the appellant grabbing the baby and holding her in his left arm.
76. [76]
    Importantly, there was no independent evidence which supported the complainant’s version of events in relation to count 1. As to count 2, while the photograph (Exhibit 1) showed an injury to the inner top lip, the complainant’s contemporaneous version given to her mother was that she had fallen in the bath. There were also inconsistencies in the complainant’s version about her having blood on her nightie. The only blood noticed by Mr S on the evening of 13 September 2020 was on the lower part of the complainant’s leg, beneath the knee. When he pointed out this blood to the complainant, she explained that it was the appellant’s blood. He did not give evidence of noticing blood “the size of an orange” on the complainant’s nightie. In light of these inconsistencies, the photograph offered only limited support to the complainant’s version of events in respect of count 2.
77. [77]
    This is to be contrasted with the evidence of Mr and Mrs K, who gave direct evidence of observing bruising to the neck, including the side of the neck, of the complainant on 15 September 2020. This bruising was not evident from the photograph which had been taken on the evening of 14 September 2020. The evidence of Mr and Mrs K constituted independent evidence which supported the complainant’s version that she had been strangled by the appellant. In light of the Robinson direction and the separate charge consideration direction, the verdicts of not guilty in relation to counts 1 and 2 do not necessarily amount to a rejection of the complainant’s evidence. Rather, in light of these directions, the differing verdicts are consistent with the jury seeking independent supporting evidence before being satisfied beyond reasonable doubt of the guilt of the appellant. In the present case, the different verdicts in relation to counts 1 and 2, as opposed to count 3, may therefore be explicable on the basis that there was corroboration in respect of count 3 but not for counts 1 and 2.^[50]

Disposition

78. [78]
    The order I propose is that the appeal be dismissed.
79. [79]
    BUSS AJA: I agree with Flanagan JA.
80. [80]
    KELLY J: I agree with the reasons of Flanagan JA and with the order proposed by his Honour.