R v MEB[2024] QCA 188

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  For the reasons given by Kelly J, I joined in the making of the Court’s orders on 28 August 2024.
2. [2]
   BROWN JA:  I agree with Kelly J.
3. [3]
   KELLY J:  The appellant pleaded not guilty to one count of common assault (domestic violence offence) (“count one”), one count of assault occasioning bodily harm (domestic violence offence) (“count two”), and one count of deprivation of liberty (domestic violence offence) (“count three”).  He was found not guilty of counts one and three but guilty of count two.  He was sentenced in respect of count two, to a term of imprisonment of 18 months to be partly suspended after he had served four months imprisonment.
4. [4]
   The appellant appealed against his conviction and sought leave to appeal against his sentence.  As regards his conviction, the appellant contended for a miscarriage of justice on the grounds that the trial judge failed to leave the defence of provocation for the jury’s consideration and did not properly direct the jury in relation to evidence of uncharged injuries.  He contended that his sentence was manifestly excessive.
5. [5]
   On 28 August 2024, the Court made the following orders:

   1. Appeal against conviction on count two of the indictment is allowed.
   2. A new trial on count two of the indictment is ordered.
   3. Reasons to be provided at a later date.
6. [6]
   These are my reasons for joining in those orders.
7. [7]
   The charges arose out of events which occurred on Thursday Island during the course of the evening of 17 June 2022.  The complainant and the appellant were then in a relationship, having recently met in March 2022.  On 14 June 2022, the couple had commenced living together at the appellant’s house.

The complainant’s evidence

8. [8]
   The complainant’s evidence, relevant to the appeal against conviction, may be outlined as follows.
9. [9]
   On 17 June 2022, she went with the appellant to meet his family at a hotel, the Federal Hotel.  They had arrived at about 5.30 pm and were drinking in an outside area.  The appellant went inside the hotel to watch a televised football game and the complainant remained outside, smoking and talking to a work colleague.  When the complainant went inside, she noticed that the appellant’s demeanour had changed as he appeared to be in a “really bad mood”.  She recalled that she said something to him and he replied, “fuck off”.  She walked outside, the appellant followed and punched her “quite hard in the arm three times”.  That evidence concerned count one.
10. [10]
    The complainant left the Federal Hotel, walked towards a supermarket to buy some cigarettes and then continued on to another hotel, the Torres Hotel.  The appellant joined her, they purchased drinks and joined a group in the hotel’s restaurant area.  When the Torres Hotel closed, the group, now including the complainant and the appellant, walked to the local bowls club, where they drank, talked outside and smoked.  At the bowls club, a melee developed involving the appellant, the complainant and others.  During the melee, the complainant was pushed over but not injured.
11. [11]
    The appellant and the complainant left the bowls club and walked back to the appellant’s house.  The appellant’s house was described as a high-set,^[1] “Queenslander” style home, with an upstairs section and an “under the house”, downstairs section.^[2]  When the complainant gave her initial statement to the police, she produced a document comprising a sketched plan of the upstairs section of the appellant’s house with some handwritten explanatory comments.  At the trial, the complainant gave evidence by reference to this document which formed Exhibit 2 and is reproduced in the following image.

^[3]

12. [12]
    When the complainant and the appellant arrived at the appellant’s house, the appellant went upstairs and the complainant went to downstairs, under the house.  The complainant remained in the downstairs area to “regroup a little bit”,^[4] before going upstairs.^[5]  When the complainant went upstairs, she told the appellant that she was leaving.  She went into one of the bedrooms (bedroom 1 on Exhibit 2)^[6] to pack her suitcases and said that, at this point, there were “words back and forth”^[7] between her and the appellant.  The appellant relevantly said, “you’re not leaving. I don’t want you to go. You’re not going anywhere”.  The complainant packed her suitcases and put them by a bookcase in the loungeroom.  The complainant stood in front of the bags and would not move out of the way of the front door, which was the sole exit point from that part of the house.  The complainant recalled saying, “what are you going to do? Are you going to hit me again?”^[8]  The appellant remained standing between the complainant and the doorway and said words to the effect, “come and have a drink, you’re not going, it’s all right”.^[9]
13. [13]
    In evidence in chief, the complainant provided the following account of what then unfolded:^[10]

“He just was still blocking me. And I’ve tried to push him. And he’s just sort of taken a couple of steps back. So that didn’t really work. … He didn’t move from the door. …. And then there was, I don’t know, 30, 40 seconds, … I don’t remember. Said something and then I’ve gone around to the side, and I’ve tried to push him away. And he’s stumbled over the lounge - the chair, the recliner.”

14. [14]
    The complainant was shown Exhibit 2.  She explained that, when drawing the sketch for the police, she had placed an X and a star symbol on two recliner chairs.  She explained that she had placed the X symbol on “the chair closest to the door where he’s toppled over, he’s fallen over that chair a little bit, and then he’s leaped and grabbed me and thrown me onto that second chair”.^[11]  The complainant had placed a star symbol on the second chair, on which she had been assaulted.^[12]
15. [15]
    The complainant described what occurred immediately after the appellant had fallen back over the chair.  She relevantly said that the appellant had taken “one big step”, reached out and grabbed her, thrown her on the recliner and started punching her.^[13]  She described being hit all over her head and the appellant having thrown at least eight punches.  The attack lasted for some 40 to 50 seconds.  The appellant stood over her and had “full range” with his punches.  At one point, she blacked out.^[14]  This evidence concerned count two.
16. [16]
    The complainant was asked “…what caused him to stop?”  She replied to the effect that she had said “it’s okay” and the appellant had stopped “the instant, I said ‘Okay’”.^[15]  The complainant recalled that her head was throbbing and that she had blood coming down her face, from her left eye.  The complainant described the immediate aftermath of the assault as follows:^[16]

“I’ve gone to get up, and he’s standing in between the two chairs, again, with his hands like this, ‘No’. So I’ve gone over to the window, and he’s come over to the window in front of me and he tried to stop the bleeding with his hand, and then he went to bathroom. He went and got a tissue, and he just kept pressing on my head, because he could see what he’d done.”

17. [17]
    In relation to count three, the complainant described herself, after the assault, opening a window and calling for help.  The appellant stood and mocked her.  She said that she tried to leave but the appellant would not let her, and he stood in front of the door blocking her path.^[17]
18. [18]
    The complainant was cross examined at some length about the circumstances in which the pushing had occurred when she went upstairs.  There were some matters of context which she accepted.  She had been very upset.^[18]  The appellant and the complainant had sworn and yelled at each other.^[19]  They had each been angry^[20] and they had pushed each other.^[21]  She described the pair having “got into … a scuffle”.^[22]  The complainant was taken to a previous statement she had made to the police.  She accepted that she had been telling the truth when she had told the police, “I went upstairs. … Next thing, [the appellant] and I were in an argument in the lounge room. I remember [the appellant] and I starting … pushing each other and were both yelling at one another”.^[23]  During her cross examination, a second “X” was placed on Exhibit 2, this time in the vicinity of the kitchen, to identify where “the pushing happened” when the complainant had “gone upstairs”.^[24]  The complainant accepted that pushing had occurred in an area adjacent to the kitchen table, near the bookcase and suitcase.^[25]  She denied having punched the appellant.^[26]
19. [19]
    The following exchange then occurred in the complainant’s cross-examination:^[27]

“But - and we [k]now from your evidence earlier in the trial, … that the pushing – well, you’ve told us the pushing around near the suitcase and the bookcase and adjacent to the kitchen, but we know there was some pushing from your evidence earlier on near the recliners, the recliner chairs, yes?---That was after, yeah.

Yeah. So - - -?---After - - -

That’s a second incident, isn’t it? That’s a second separate incident of pushing between you and - or what you say happened between you and [the appellant]?---When I was trying to get out the door.

Yes. Yes?---Yeah.

You accept that? And that’s when you pushed him and he went into the recliner and tumbled onto the ground, yes?---First time, he just stepped back and then he continued to stand there, yeah. Yes

So pushed back and you’re indicating with your hands out to the sides, so is that the first time you pushed him in that - in that incident - in that incident?---Yeah, he wouldn’t move - - -

All right. So?--- - - - away from the door, yeah.

All right. And then you pushed him again and did he fall over the recliner?---Yep.

Right. You accept you would’ve pushed him with significant - a significant degree of force, don’t you?---I know that he lost his balance.

Do you accept you pushed him with a significant degree of force?---Well, he’s six foot four.

Yes? I just tried to knock him off his feet so I could - - -

Probably, yeah?--- - - - and my plan was to go for the door. He’s tumbled over.

Yeah, probably - well, by saying that do you accept you used a significant degree of force to be able to push - - -?---Tried to.

---a big man over, yes?---Yes.

…

And he went over, didn’t he?---Yeah.”

The appellant’s police interview

20. [20]
    The appellant did not give evidence.
21. [21]
    On 17 June 2022, he had been interviewed by police.  The interview was recorded by a body worn camera.  The recording of the interview was Exhibit 7.
22. [22]
    At the outset of the interview, the appellant stated, “I can’t believe … what happened tonight …. She fucking hit me you know multiple times before that…”.^[28]  He added “she fucking hit me big time”.^[29]
23. [23]
    The appellant’s account to the police was that he had been punched by the complainant, he had fallen over but he had not punched or hit her.  In that regard, the following material exchange occurred during the interview:^[30]

“[Police Sergeant]: And what happened once you got home?

[Appellant]: Well we just come upstairs. I had to open the door, she came in and …  she started hitting me in the chest. …

She belted the fucking shit out of me tonight. I fell over a couple of times there in the lounge room.

….

[Police Sergeant]: … And you think she might have hurt herself in the bathroom?

[Appellant]: Well I think so because, ah - -

[Police Sergeant]: You don’t know how …

[Appellant]:  Well I don’t know [INDISTINCT] the blood got there. Like she came out, like she wasn’t bleeding or anything before. … And she went in the bathroom and then she came out bleeding, I said what, I never touched … touched her at all”

24. [24]
    Later in the interview the appellant again referred to the complainant as, “… fucking belting the shit out of me” and being “ …so aggressive, she pushed me over”.  He referred to having been pushed in the chest and slapped in the face.^[31]

Failure to leave provocation for the jury

25. [25]
    Section 269 of the Criminal Code provides:

“269 Defence of provocation

1. A person is not criminally responsible for an assault committed upon a person who gives the person provocation for the assault, if the person is in fact deprived by the provocation of the power of self-control, and acts upon it on the sudden and before there is time for the person’s passion to cool, and if the force used is not disproportionate to the provocation and is not intended, and is not such as is likely, to cause death or grievous bodily harm.

2. Whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of self-control and to induce the ordinary person to assault the person by whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self-control, and whether any force used is or is not disproportionate to the provocation, are questions of fact.”

26. [26]
    The meaning of the term “provocation” is dealt with in s 268 of the Criminal Code which provides:

“268 Provocation

1. The term provocation, used with reference to an offence of which an assault is an element, means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person … to deprive the person of the power of self-control, and to induce the person to assault the person by whom the act or insult is done or offered.

2. When such an act or insult is done or offered by one person to another, …, the former is said to give to the latter provocation for an assault.

3. A lawful act is not provocation to any person for an assault. …”

27. [27]
    The defence in s 269 is available where:

    1. there was provocation for an assault;
    2. the provocation actually deprived the person of their power of self-control;
    3. the person acted on the provocation on the sudden, before there was time for their passion to cool; and
    4. the force used by the person was not out of proportion to the provocation and was not intended or likely to cause death or grievous bodily harm.
28. [28]
    Section 269(2) makes clear that whether any particular act was such as to be likely to deprive an ordinary person of the power of self-control and to induce that person to assault the person by whom the act is done, the person provoked was actually deprived by the provocation of the power of self-control and any force used was or was not disproportionate to the provocation, are questions of fact.  In answering those questions, a jury is entitled to have regard to the totality of a complainant’s conduct, to “view the situation in its entirety” and to assess the content and extent of the provocative conduct from the viewpoint of the defendant.^[32]
29. [29]
    Whether provocation arises for consideration by a jury is a question for the trial judge.^[33]  In Bullard v The Queen,^[34] in a statement later said by the High Court to be “amply supported by authority,”^[35] Lord Tucker said:

“It has long been settled law that if on the evidence, whether of the prosecution or of the defence, there is any evidence of provocation fit to be left to a jury, and whether or not this issue has been specifically raised at the trial by counsel for the defence and whether or not the accused has said in terms that he was provoked, it is the duty of the judge, after a proper direction, to leave it open to the jury to return a verdict of manslaughter if they are not satisfied beyond reasonable doubt that the killing was unprovoked.”

30. [30]
    The statement is reflective of settled principles to the effect that it is not for the defence to make out a prima facie case of provocation^[36] and “… all that the defence need do is to point to material which might induce a reasonable doubt”.^[37]
31. [31]
    In Masciantonio v The Queen,^[38] the High Court said:

“The answer to the question whether the trial judge should have left provocation to the jury … depends upon whether there was evidence which was capable of constituting provocation. However, because the onus of disproving provocation rests upon the prosecution once there is evidence to raise the question, the actual test must be expressed somewhat more precisely. It is ‘whether, on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense’. The question is the same when a trial judge is considering whether or not to leave provocation to the jury as it is when an appellate court is considering whether it ought to have been left … ‘An appellate court must apply the test with as much exactitude as the circumstances permit.”’ (footnotes omitted)

32. [32]
    In Stingel v The Queen,^[39] the High Court recognised the need for a trial judge to exercise caution before declining to leave provocation to the jury in a case where, “even though provocation is not raised by the accused, there is material in the evidence which might arguably be thought to give rise to a defence of provocation”.^[40]
33. [33]
    In R v DCE,^[41] Flanagan JA, with reference to Stingel and Masciantonio, recently observed:

“In deciding whether to leave the defence to the jury, the decision must be made by reference to the version of events most favourable to the accused and, if there is the least doubt, the issue should be left to the jury.”

34. [34]
    In the present case, the defence did not ask the judge to leave provocation to the jury.  In his interview, the appellant had denied hitting or touching the complainant.  The judge remarked in his summing up that there was “nothing suggested in relation to [the alleged] assault … that would otherwise make it authorised, justified or excused by law.  That is just not an issue”.^[42]  Although the appellant had denied hitting the complainant and no request was made to leave provocation to the jury, the test to be applied by the judge was whether, on the version of events most favourable to the appellant, which was suggested by the material in the evidence, a jury acting reasonably might have failed to be satisfied beyond reasonable doubt that the assault was unprovoked in the relevant sense.  On this appeal that test falls to be applied by this Court with “as much exactitude as the circumstances permit”.
35. [35]
    There was a significant body of evidence relevant to the elements of provocation.  As to the wrongful act constituting the provocation, the appellant had described being belted, punched, slapped in the face and pushed over by the complainant.  The complainant denied punching the appellant, but had accepted that she had been angry, the pair had been swearing and yelling and had pushed each other.  On the complainant’s version there had been something akin to an escalating scuffle, involving more than one episode of pushing, culminating with her having used “significant force” to “knock [the appellant] off his feet”.  There was evidence that the appellant, because of the altercation, lost self-control and acted on the sudden.  The complainant described the appellant in the immediate aftermath as taking “one big step”, reaching out and grabbing her and throwing her on the recliner and punching her.  She described an attack of eight punches lasting for some 40 to 50 seconds which ended “the instant” she said “okay”.
36. [36]
    The truth of the competing versions, in whole or part, was a matter for the jury.  This was not a case where the appellant’s version that the complainant had belted, punched and slapped him could not be reconciled with clear and unchallengeable facts.  It was open to the jury to accept parts of the appellant’s version, whilst rejecting his story that he had never touched or punched the complainant.^[43]  Depending upon what parts of the evidence the jury accepted, the wrongful act or acts constituting the provocation may have been constituted by the complainant using significant force to knock the appellant off his feet or by a combination of the complainant’s actions involving belting, punching, slapping and pushing the appellant.
37. [37]
    The real issues which fell to be resolved by the jury concerned whether the wrongful acts were of such a nature as to be likely, when done to an ordinary person, to deprive that person of self-control and to induce that person to commit an assault and whether the force used by the appellant was not out of proportion to the provocation.  These real issues fell to be resolved by reference to the wrongful act or acts as found to have occurred as a matter of fact.  The jury were entitled to identify the implications, and to assess the gravity, of any provocative conduct as it was found to have occurred.^[44]  The content and extent of the provocative conduct also fell to be assessed from the viewpoint of the appellant.^[45]  The question as to whether the force used was disproportionate depended on the circumstances of the case, including the physical attributes of the complainant and the nature and extent of the attack or wrongful act.  In deciding whether to leave provocation to the jury, the trial judge was obliged to take the view of the material in the evidence most favourable to the appellant.  The view most favourable to the appellant was that, in the context of a developing scuffle involving heightened emotions, swearing and yelling, the appellant had been belted, punched and slapped by an aggressive complainant.  The complainant was much smaller than the appellant but had used such significant force as to cause the appellant to topple over a recliner chair and hit the floor.  The appellant’s response was immediate and involved throwing punches which led to the complainant suffering a laceration.
38. [38]
    Viewing the complainant’s evidence and the appellant’s interview in the manner most favourable to the appellant, there was “material in the evidence which might arguably be thought to give rise to a defence of provocation”.^[46]  On that view of the material, a jury acting reasonably might have failed to be satisfied beyond reasonable doubt that the assault was unprovoked in the relevant sense.  In those circumstances, the trial judge was under a duty to leave provocation to the jury, notwithstanding that reference to the same material in the evidence may not have been sufficient to find affirmatively that provocation existed.^[47]  Adopting the cautious approach commended in R v DCE, provocation should properly have been left to the jury.

Alleged failure to properly direct in respect of uncharged injuries

39. [39]
    The particulars for count two were that the appellant punched the complainant multiple times to the head causing a laceration to her left eyebrow.  There was evidence of other injuries comprising bruising to the left side of the complainant’s head and two black eyes.  The second ground of appeal involves a complaint that the judge did not direct the jury as to “how to have regard to”^[48] the evidence of bruising.  This ground of appeal was elucidated in the appellant’s argument as follows:

    1. “[The trial judge] ought to have clearly quarantined that evidence from being substituted for the laceration. There was a danger, in the absence of a clear direction, that the jury misused the effect of that bruising in their consideration of [count two]. The absence of clarity in the direction created a real risk that the jury considered what was the identified evidence of other injuries in an impermissible way”;^[49] and
    2. “[t]hat other evidence is plainly admissible as a narrative fact, at least to support the version which was given by the complainant, but it was not a particular which was relied upon to prove the bodily harm which was, in fact, the laceration”.^[50]
40. [40]
    The suggested risk that the jury considered the evidence of bruising in an impermissible way has to be assessed by reference to the realities of how the trial was conducted in relation to count two and the evidence of bruising.  The Crown opened the case in accordance with the particulars.  The punches were said to have caused “a laceration to [the complainant’s] left eyebrow, which was about two to three centimetres in length and had to be closed with stitches”.^[51]  The Crown opened evidence from Drs Jeffrey and Holyoak.  The complainant had been taken by ambulance from the scene to the hospital.  At the hospital she was examined by Dr Jeffrey who noted a “two to three centimetre laceration to the left eyebrow”^[52] and stitched “the wound”.^[53]  Dr Holyoak had seen the complainant “some days later” and “at that stage”, the complainant presented with bruising.^[54]
41. [41]
    Dr Jeffrey gave evidence that she had examined the complainant at approximately 1.00 am in the morning on 18 June 2022.  She had observed a laceration above the complainant’s left eyebrow which was about two centimetres in length and required suturing.  The complainant had swelling and tenderness and slight bruising to her left upper eyelid and pain and tenderness to her left ear.  Dr Jeffrey sutured the laceration.  Dr Holyoak was a specialist in intensive care and emergency medicine.  The complainant had been referred to him by a general practitioner.  Dr Holyoak examined the complainant during the evening of 22 June 2022.  He gave evidence that, upon examination, the complainant’s injuries were “mostly bruising”.  He observed bruising to the left hand side of her head and two “very obvious big black eyes”.^[55]  He also noticed that the complainant had a laceration over her forehead on the left hand side of approximately three centimetres in length which had been closed with sutures.^[56]  The following exchange then occurred in Dr Holyoak’s evidence in chief:^[57]

“Okay. So I just want to cover off the locations of the bruising that you noted?---Yes.

So there was bruising to the laceration itself on the left eyebrow?---Yes. So forehead, sort of, above the eyebrow, yes.

Yes. There was bruising to the mandible juncture, did you say – did you call it?---Correct, yes. So her left jaw joint and the left side of her, like, skull there as well.

Yes. And then there was bruising under each of eyes?---Around both of her eyes, yes. Yeah.

Okay. And in your experience is that consistent with blunt force trauma?---It is consistent with blunt force trauma, yes.

And noting the number of locations of bruising, is that more consistent with a single blunt force trauma or more than one blunt force traumas?---With multiple blunt force traumas. It would be more associated with that, yes. I would say, in fact, it would be very difficult to sustain this from a single blunt force.”

42. [42]
    Dr Holyoak expressed his opinion that the laceration was more consistent with blunt force trauma as distinct from a laceration caused by a sharp implement.  He relevantly observed that blunt force trauma tended to produce more “ragged” lacerations due to tearing as distinct from the clean and definitive type of laceration typically caused by sharp implements.^[58]
43. [43]
    In closing the case for the Crown, in relation to count two, the prosecutor stated that the evidence from the complainant was that the appellant had “punched her eight times in the face, which caused that laceration to her eyebrow”.^[59]  The prosecutor noted that Dr Jeffrey had given evidence of the laceration to the complainant’s eyebrow and that Dr Holyoak had observed bruising in a number of areas, which bruising was said to be consistent with multiple blunt force traumas and the complainant’s account of having been punched multiple times.
44. [44]
    In his closing address, defence counsel emphasised the importance of the particulars of the charge.  He then said to the jury:^[60]

“I heard my friend say – my learned friend say to you in his closing that, well, there were eight punches, and there were black eyes and other injuries noted by the doctors. Now, this is with respect to the injury to the head. But the Crown has particularised its case, as it must, in this fashion for the assault occasioning bodily harm charge: that the defendant punched the complainant multiple times to the head, causing a laceration to her left eyebrow, at his house. So what your duty is here to assess is not, for example, “Well, did [the appellant] punch [the complainant] to the side – to the face somewhere, and she ended up with a black eye?” That’s not the particulars of the Crown charge. The particulars of the Crown charge is that he punched her multiple times to cause that laceration above her eyebrow or, to use the specific words that the Crown relies upon, causing a laceration to her left eyebrow at his house.”

45. [45]
    In the summing up, the judge described “the four corners” of the Crown’s case in relation to count two as being:^[61]

“That it is alleged that the defendant punched the complainant multiple times to the head causing a laceration to her left eyebrow at his house.”

46. [46]
    The judge provided the jury with question trails.  In respect of count two, question two of the relevant question trail was framed as follows:

“Are you satisfied beyond reasonable doubt that the defendant thereby did the complainant bodily harm; that is, any bodily injury which interferes with health or comfort?”

47. [47]
    In providing that question to the jury, the judge observed that the answer to that question depended “upon what you find is the assault in the context of the Crown case, and whether or not that has the result mentioned in question two”.^[62]  The judge had earlier in the summing up referred to the prosecutor’s submission that “what the doctors said … supports [the complainant’s] account”.^[63]
48. [48]
    After retiring, the jury asked the following two questions: “How do we assess count 2 with regards to the laceration versus the other injuries? …Is the bodily harm the laceration only?”^[64]
49. [49]
    The jury was brought back so that the judge could answer the two questions.  The judge said the following to the jury by way of answer to the questions:^[65]

“Can I answer it this way. The first question seems to intimate some competition between laceration versus other injuries. I suppose how you proceed using the process that I have indicated, first you stick to the prosecution’s allegation. So it is alleged the defendant punched the complainant multiple times to the head causing a laceration to her left eyebrow at his house. So the first question draws you to consider whether the defendant assaulted the complainant. So you think about that and you examine the evidence about that.

I have spoken to you about what she says comprise[s] the assault, at least eight punches between 30 and 50 seconds where she blacks in an[d] out, and the excruciating pain that she said was experienced. The defendant says he did not touch her at all, but rather she went to the bathroom and came out with the inexplicable injury, the laceration. So when you move to question 2, you are asked:

Are you satisfied beyond reasonable doubt that the defendant thereby did the complainant bodily harm, that is any bodily injury which interferes with health o[r] comfort.

So your consideration of that point, again tied to the prosecution case, is did what you find happen as the assault cause a laceration? It can be a laceration only, or a laceration among other things. But the question is, did whatever happen in the assault cause a laceration? So is the – to answer the question:

Is the bodily harm laceration only?

Yes. So by the time you get to question 2, your focus is only whether or not there was a laceration or not caused by the assault, if you reach that question. So hopefully that helps you. There is evidence of other injuries. You can, of course, have regard to those things, but what is clear is the prosecution are not relying upon those other injuries in that second question.

So to recap, you first look at what you accept on the evidence, and then whether you are satisfied beyond reasonable doubt that the defendant assaulted the complainant. And that does require you to consider the competing bits of evidence, including that which competes within [the complainant’s] evidence about what she says occurs and how it is presented and what the defendant has said to the police. But even if you do not accept what he says, you need to go back and consider whether you are satisfied beyond reasonable doubt of her evidence. As I said, those three options.

So once you have set your task individually as to what you say is the assault that happened, then you go to question 2. And you can reword that, in a sense:

Are you satisfied beyond reasonable doubt that the defendant thereby, by whatever it is the assault is that you found, did the  complainant bodily harm, namely, a laceration to her left eyebrow?”

50. [50]
    It may be accepted that the jury’s question occurred at a “critical stage” of the trial.^[66]  The questions objectively revealed that, at that point in the trial, in relation to count two, the jury remained uncertain about the relevance of the evidence of other injuries, namely the bruising and whether the bodily harm referred to in count two was the laceration alone.  In providing further directions to the jury, the judge made it abundantly clear that the laceration was the bodily harm relied upon as having been caused by the assault.  The judge also referred to the complainant’s version that she had been punched multiple times during the assault and the appellant’s statement during the interview that he had not touched the complainant but rather she had gone to the bathroom and emerged with the laceration.  On this appeal, the appellant conceded that the evidence of bruising was “plainly admissible as a narrative fact, at least to support the version which was given by the complainant”.^[67]  That concession was plainly correct.  According to the medical evidence, the bruising was consistent with multiple blunt force traumas and, in that respect, provided objective evidence which supported the complainant’s evidence that the assault had involved her having been repeatedly punched.
51. [51]
    The judge instructed the jury that they were entitled to have regard to the bruising and said, “but what is clear is the prosecution are not relying upon those other injuries in that second question”.  The judge’s reference to “that second question” was to question two in the question trail for count two.  That question was directed to whether, by the assault, the appellant “did the complainant bodily harm”.  The judge’s answers to the jury’s questions made it clear that the evidence of bruising could be relied upon when the jury considered whether the defendant had assaulted the complainant, but that the only bodily harm relied upon by the Crown was the laceration.  This Court is entitled to assume that the jury understood and followed the directions they were given by the judge.^[68]  Having regard to the clarity of the judge’s answers in response to the questions posed by the jury, the appellant has not established a real risk that the jury considered the evidence of bruising in an impermissible way.  The second ground of appeal fails.