R v MEJ[2024] QCA 249

SUPREME COURT OF QUEENSLAND

1. [1]
   BOWSKILL CJ:  I have had the advantage of reading in draft the reasons of both Boddice JA and Doyle AJA.  I join with each of them in concluding that the appeal should be allowed, the verdicts of guilty on counts 1-3, 6-8 and 10 should be set aside, and that there be a new trial.  I agree with Boddice JA’s reasons for allowing the appeal on ground 4, and with Doyle AJA’s reasons for allowing the appeal on ground 6.  I also agree with the reasons of Boddice JA for rejecting grounds 1, 2 and 3 and, in relation to ground 3, with the additional observations of Doyle AJA.
2. [2]
   BODDICE JA:  On 1 September 2022, a jury found the appellant guilty of five counts of assault occasioning bodily harm whilst armed, one count of assault occasioning bodily harm and one count of common assault.  The jury found the appellant not guilty of one count of threatening violence and two counts of assault occasioning bodily harm.
3. [3]
   The appellant appeals his conviction.  He relies on six grounds.
4. [4]
   First, the verdicts are unreasonable or cannot be supported having regard to the whole of the evidence.  Second, the verdicts of guilty are unreasonable due to their inconsistency with the acquittals.  Third, the verdicts on one of the counts of assault occasioning bodily harm whilst armed and one of the counts of assault occasioning bodily harm, cannot be supported by the evidence, as they were not proven to have occurred on or within the dates charged.  Fourth, the trial judge’s written directions to the jury erred at law in respect of the offences involving the use of a weapon.  Fifth, the trial judge failed to give a direction to the jury as to how to use the complainant’s prior consistent and inconsistent statements.  Sixth, the trial judge failed to give any or an adequate warning against propensity reasoning, to guard against a miscarriage of justice.

Indictment

5. [5]
   Each count on the indictment concerned the same female complainant.  She had been in a de-facto relationship with the appellant throughout the entire period, the subject of the counts.  During that relationship, they had three children.
6. [6]
   Count 1 alleged that on a date unknown between 1 June 2004 and 31 August 2004, the appellant unlawfully assaulted the complainant and did her bodily harm, whilst armed with a dangerous weapon.  The offence was particularised as having taken place most likely in June or July 2004 at home.  It was alleged that after the complainant offered a jesting insult to the appellant, he produced a black handled knife and lunged at her, holding the blade under her left jawbone, cutting her without her consent.  The cut caused pain and discomfort for at least a number of days.
7. [7]
   Count 2 alleged that on 17 November 2006, the appellant unlawfully assaulted the complainant and did her bodily harm whilst armed with an offensive instrument.  It was particularised as having taken place in the loungeroom of their residence, whilst another male was present.  It was alleged the appellant became angry when the complainant would not get him something and when she stood up, the appellant threw an object, most likely a bottle, at her, striking her head and causing it to bleed from the top left side.  The object was thrown without her consent and it caused her pain and discomfort for at least a number of days.
8. [8]
   Count 3 alleged that on a date unknown between 1 January 2007 and 31 May 2007, the appellant unlawfully assaulted the complainant and did her bodily harm whilst armed with a dangerous instrument.  It was particularised as having occurred at home in early 2007, whilst they were living at Noosa Heads.  It was alleged that the appellant accused the complainant of seeing someone else and then applied force, without her consent, by gripping the flesh of her left upper arm in the jaws of a pair of pliers and twisting those pliers, causing bruising and grazing to her arm with the complainant experiencing pain and discomfort for at least a number of days.
9. [9]
   Count 4 alleged that on a date unknown between 1 July 2007 and 30 April 2008, the appellant, with intent to alarm the complainant, held a loaded rifle under her chin, with the act likely to cause her to fear bodily harm.  It was particularised as having occurred whilst they were still living at Noosa Heads.  It was alleged the appellant purchased a rifle (equipped with a bayonet) and a quantity of ammunition, and when the complainant complained about the money spent on the rifle, the appellant, who was cleaning the loaded rifle at the time, cocked the rifle and placed the barrel under her chin saying words to the effect, “This is what it’s used for, I could shoot you before anyone or the police could even come here.”^[1]
10. [10]
    Count 5 alleged that on a date unknown between 1 May 2010 and 31 July 2011, the appellant unlawfully assaulted the complainant and did her bodily harm.  It was particularised as having occurred whilst the appellant and complainant were living at Sunshine Beach, when a female friend was staying with them.  It was alleged that after the complainant refused to give the appellant her PIN number to her phone, the appellant threw her to the floor and stomped on her throat so she could not breathe, without her consent, causing footprints on her throat.  The complainant experienced pain and discomfort for a number of days.
11. [11]
    Count 6 alleged that on a date unknown between 1 June 2010 and 20 June 2011, the appellant unlawfully assaulted the complainant and did her bodily harm.  It was particularised as having occurred whilst the complainant and the appellant were living at Sunshine Beach and after two of their daughters had been born.  It was alleged the complainant, whilst putting the children to bed, was yelled at by the appellant who pushed her onto the bed from behind, telling her that if she did not keep quiet, he would break her ankle, before grabbing her ankle and twisting it until she heard a crack, causing her immediate pain.  This was done without her consent and caused discomfort for a number of days.
12. [12]
    Count 7 alleged that on a date unknown between 1 June 2010 and 31 December 2010, the appellant unlawfully assaulted the complainant.  It was particularised as occurring in the latter part of 2010, whilst the complainant and the appellant were in an open relationship.  It was alleged that the appellant wanted the complainant to participate in sexual interactions with a female friend and when she refused, he punched her and kicked her, without her consent, leaving welts on the back of her legs.
13. [13]
    Count 8 alleged that on a date unknown between 1 January 2011 and 29 April 2011, the appellant unlawfully assaulted the complainant and did her bodily harm, whilst armed with an offensive instrument.  It was particularised as having occurred in early 2011 when the complainant was at home and using her phone to order food.  It was alleged the appellant became angry and when she got off the phone, told her, “I will throw this at you”, referring to a plastic chair if she did not “wipe that stupid look” off her face and that he then threw the chair, striking the complainant in the face without her consent and damaging her front teeth, breaking one of the teeth off, causing her to experience pain and bleeding for at least a number of days.
14. [14]
    Count 9 alleged that on a date unknown between 1 July 2011 and 11 June 2011, the appellant unlawfully assaulted the complainant and did her bodily harm.  It was particularised as having occurred in the bedroom of their residence at Sunshine Beach.  It was whilst the complainant was in the walk-in wardrobe the appellant pushed her from behind, causing her head to strike a shelf, cutting her forehead, without her consent, as a result of which the complainant experienced pain and discomfort for at least a number of days.
15. [15]
    Count 10 alleged that on a date unknown between 28 July 2012 and 26 June 2013, the appellant unlawfully assaulted the complainant and did her bodily harm whilst armed with a dangerous weapon.  It was particularised as occurring whilst the complainant and the appellant were living at Noosaville and the complainant was attending to their newborn son.  It was alleged the appellant removed a sword from its sheath, before knocking the complainant into a wall and holding the blade across her throat, causing a graze, without her consent.  The complainant experienced pain and discomfort from this injury, for at least several days.
16. [16]
    The jury found the appellant guilty of counts 1, 2, 3, 6, 7, 8 and 10.  The appellant was found not guilty of counts 4, 5 and 9.

Trial

17. [17]
    The evidence was in short compass, being completed on the first day.  Addresses and the summing up were completed on the morning of the second day, with the jury retiring at lunch time to consider their verdicts.  The jury returned verdicts the following day.
18. [18]
    The prosecution called one witness, the complainant.  Formal admissions were also made as to: addresses the appellant and complainant had resided at throughout their relationship; the dates upon which certain photographs were taken; the dates of attendances by police in respect of domestic violence incidents and the execution of a search warrant; and as to medical records from attendances by the complainant at a hospital on 17 November 2006 and 27 June 2010 and a doctor’s surgery on 27 April 2011 and 11 July 2011.  An admission was also made that in respect of count 2, what was thrown by the appellant and hit the complainant in the head, was a beer bottle.
19. [19]
    At the close of the prosecution case, the appellant elected not to give or call evidence.
20. [20]
    The issue for the jury was whether they were satisfied, beyond reasonable doubt, that the appellant had done each of the acts the subject of the counts.  It was put to the complainant that no such events occurred, other than count two when it was put that the bottle struck her accidentally, when she stood up, as it was thrown towards a bin.

Evidence

21. [21]
    The complainant first met the appellant whilst she was at high school.  They became a couple and were in a relationship by 2004 and separated in 2013.  In 2004, they travelled to North Queensland.  Upon their return, in about May 2004, they lived with the appellant’s mother.  They did not have any children at that stage.
22. [22]
    In or about June or July 2004, the complainant said they were at home with a male friend.  The complainant made a remark to the appellant, in jest.  The appellant said, “How dare you”.  He confronted the complainant and without permission, held a black serrated knife with a blade approximately three to four inches long, under her chin.  The blade cut her underneath the left hand side of the chin, causing a scar.  (Count 1).  The male friend went upstairs.  The complainant was told by the appellant to go and explain herself.  The cut caused her discomfort for approximately a week.  She did not seek any medical treatment.  The complainant identified police photographs taken in 2014, of what she said was that scar.
23. [23]
    The complainant and the appellant moved to Noosa Heads in about April 2005, living there until 26 March 2010.  Their two daughters were born whilst they were living at that residence.  The complainant said that sometime after the first daughter was born, and when a male friend was present in the loungeroom drinking with the appellant, she was asked by the appellant to do something.  The appellant was agitated and as she stood up, the male friend said, “Look out.”  The complainant felt something hit her in the head.  Blood was coming from the top of her head.  (Count 2).  An ambulance was called and the complainant received stitches.  When she returned home from seeing a doctor, she found the couch soaked in blood.  There was blood on the floor.  A beer bottle was also on the floor.  It had not smashed.  It had not been there prior to the complainant standing up.  She did not give the appellant permission to strike her with any object.  She suffered pain for probably about a month.  Photographs were shown to the jury of a scar said to have been left from that injury.
24. [24]
    The complainant said that whilst they continued to live at that address, she had an argument with the appellant, who accused her of seeing someone.  They were in the loungeroom together.  No one else was present.  The appellant grabbed her arm with pliers and twisted the upper left hand part.  (Count 3).  She felt immediate pain.  The jaws of the pliers had skin and blood on them.  She did not give the appellant permission to use the pliers on her arm.  She had a bruise for two to three weeks and was left with a scar.  Photographs of what was said to be the scar were shown to the jury.  The complainant did not seek medical attention.
25. [25]
    The complainant said when they were still living at that address, the appellant purchased a rifle for about $2,000.  It came with 200 live rounds of ammunition.  They had an argument about the rifle.  The complainant said to the appellant she did not know why it was purchased and that it was a waste of money.  The appellant reacted by putting the rifle underneath her chin, cocked and loaded saying, “This is what it’s for.  I could shoot you before anyone or the police could even come here.”  (Count 4).  The muzzle of the rifle came into contact with her chin, just up underneath the throat.  The appellant’s finger was on the trigger.  The incident ended when the appellant lowered the rifle and laughed.
26. [26]
    The complainant said after they had moved to Sunshine Beach (it was admitted they resided there between 25 June 2010 and 25 June 2011) a female friend stayed with them.  At that stage, the complainant was in an open relationship with the appellant.  The appellant suggested engaging in sexual activity with him and the female friend.  When the complainant said no, the appellant kicked and hit the complainant causing her to fall to the floor.  The appellant then kicked her in the back and ribs.  She suffered injuries to her back, ribs, arms and the back of her legs.  (Count 7).
27. [27]
    The complainant said there was another occasion when the appellant struck her after she refused to give him the PIN to her mobile phone.  He caused her to fall to the ground.  He then stomped on her throat.  He had steel capped boots on at the time.  He left a boot print mark on her throat and bruising.  (Count 5).  It was painful to do anything for about a week.  He did this without her permission.
28. [28]
    The complainant said there was an incident, not long after they moved to Sunshine Beach, when putting her two daughters to bed.  The appellant told her to get out of the room.  When she objected, he struck her.  She said, “Stop it”.  He told her to shut up and to stop making noise.  The appellant grabbed her right ankle without permission and said if she did not shut up he would break it.  He then twisted her ankle until she heard a snap.  (Count 6).  She felt immediate pain.  The ankle went black over the coming days and she realised it was more than a sprain or a dislocation.  The complainant then attended hospital.  Severe pain lasted for some months.
29. [29]
    The complainant said on another occasion, whilst they were still living at Sunshine Beach and she was ordering takeaway, the appellant became impatient and told her to stop looking at him.  The appellant then threw a plastic chair at the complainant.  He was a couple of metres away.  The chair struck her in the front of her mouth, causing her to lose part of her teeth.  (Count 8).  She felt immediate pain and there was bleeding.  This occurred without her permission.  She was not able to eat properly for a long time.  Photographs of what was said to be the damage to her teeth were shown to the jury.
30. [30]
    The complainant said they moved to another address in Sunshine Beach in late 2011 until early 2012.  There was an incident when she went into the bedroom to get away from an argument with the appellant.  The appellant came up from behind and hit her head into one of the wooden shelves in the walk-in cupboard.  Her left eyebrow struck the shelf, causing it to bleed.  She had pain and discomfort for a couple of weeks.  (Count 9).  This occurred without her permission.  The complainant went to see a doctor.  She lied to the doctor about how it happened, saying she fell on something.  Photographs of what was said to be a scar over her eyebrow were shown to the jury.
31. [31]
    The complainant and the appellant moved to a residence in Noosaville in May 2012.  They resided there until June 2013.  Whilst there, their third child, a son, was born.  Not long after he was born, the complainant said there was an argument.  The appellant wanted her to roll smokes and make him an iced coffee.  When she said she would go to the son first, the appellant held her against a wall and put a sword to her neck.  The blade was unsheathed and left a cut in the neck region.  She was uncomfortable for a couple of days.  He did this without her permission.  A photograph of what was said to be the scar was shown to the jury.  The photograph was a selfie, taken the day of the incident on the appellant’s phone.  The complainant did not seek medical treatment.
32. [32]
    In cross-examination, the complainant said that after the incident in the appellant’s mother’s house, she made some excuse to the appellant’s mother and other family members as to why the male friend had gone upstairs and made a commotion.  The complainant said in respect of the bottle throwing incident, the appellant and the male friend had been drinking for maybe an hour or so.  The appellant was drinking a mix of stubbies and spirits.  The appellant and the friend had also been smoking cannabis.  The complainant had smoked a couple of joints earlier in the day.  The complainant denied a suggestion that the appellant was throwing the bottle in the direction of a rubbish bin.  She also denied it was the appellant who called out, “Look out”.  She agreed that the bottle forced a bobby pin into her head.  The complainant accepted that when the bottle hit her on the head, the appellant told the male friend to get help.  Two neighbours came into the unit.
33. [33]
    The complainant accepted that the patient assessment record for her hospital visit that day, recorded “Argument with de facto partner.  Whole stubby bottle thrown four metres to patient’s head.”^[2]  She accepted that in conference with the prosecutor on 8 June 2022, she had told the prosecutor that she told the doctor was she had fallen and hit her head and that she did so because she did not want it to be considered to be domestic violence.  The complainant said she had said that to the doctor, but had then told the doctor the truth because the doctor said he could not treat her properly unless she was honest with him.
34. [34]
    The complainant accepted that in evidence given in September 2016, she said she did not tell doctors what happened because she was worried they would report it to the police.  The complainant accepted she was aware she had already reported an act of domestic violence to the doctor in 2006, but said she had asked the doctor if there would be any repercussion and he said, “Not if you don’t act.”  The complainant said she thought there was a risk that hospitals were required to report acts of domestic violence to police.  That was why she did not attend the hospital a lot; she only attended when she had no other choice.
35. [35]
    The complainant accepted that for their entire relationship, she used cannabis with the appellant, often two or three times per day.  She agreed that in October 2013, she had told police that marijuana would calm the appellant and that he would pass out.
36. [36]
    The complainant accepted that she never sought medical treatment in relation to the pliers incident.  She also never took any photos at the time.  She agreed no one else was present.  The complainant said, in relation to the rifle incident, that the appellant would clean the rifle whilst loaded.  She agreed that the appellant obtained the rifle when he was under the age of 18.  She denied that what was purchased was a replica.
37. [37]
    The complainant accepted that the rifle incident was said to have taken place between 1 July 2007 and 30 April 2008 and that police executed a search warrant at the unit on 15 July 2008.  No weapon was found during that search.  The complainant said whenever any raids were conducted, the rifle was not on the premises.  The appellant was very cautious with the rifle and did not want to lose it.  The complainant accepted that nobody else was in the house at the time the appellant made the threat.
38. [38]
    The complainant accepted that in relation to the PIN incident, she did not seek medical treatment and did not take photographs.  At the time, a female was living with them.  She lived with them from about May or June 2010 to January 2011.
39. [39]
    The complainant said in relation to the ankle incident, that she attended the hospital on 27 June 2010.  She reported that a box had fallen on her and she had twisted her ankle.  She accepted that whilst at the hospital, she could have told the radiographer what had actually happened.  The complainant said she was petrified of the appellant and was not willing to say anything.  That was an escalation of violence that had not been foreseen.  She had reported the act of domestic violence back in 2006, because she was bleeding and needed assistance.  The ankle was a straightforward injury.^[3]
40. [40]
    The complainant said in respect of the throat incident, she did not seek any medical treatment and did not take any photographs.  She accepted that in court was the first time she had mentioned that the appellant had steel caps on when he stomped on her throat.  The complainant said she had nine years to process what had happened to her.  Her memory was better today than when she gave her statement to police.
41. [41]
    The complainant said in relation to the teeth incident, she saw a doctor on 27 April 2011 and a different doctor on 29 April 2011.  She reported to the first doctor that she had fallen and hit the back of a plastic chair.
42. [42]
    The complainant accepted that whilst living at Noosa Heads, she would use methylamphetamine.  She denied that she had bad teeth from methylamphetamine use.  She denied that she had just come home one day with an injury to her teeth.  The complainant did not accept that her balance or coordination was affected by her cannabis, or methylamphetamine use.
43. [43]
    The complainant agreed that after the shelf incident she saw a doctor on 11 July 2011.  She told that doctor that she had hit her head on a shelf.  She made no mention of a physical assault.  The complainant agreed that she did not seek medical treatment in relation to the sword incident.  She denied that incident did not take place.
44. [44]
    The complainant accepted that police attended their home on several occasions when living at Noosa Heads.  When she spoke to police in 2013, she told police that each time police had attended, they never came into the house and never checked on the wellbeing of the children.  The complainant said the majority of times they could not get into the house.  She agreed that when she gave evidence in September 2016, she was saying that she was unable to tell police what was going on.
45. [45]
    The complainant accepted that police had attended domestic violence call outs on 31 October 2007 and 10 June 2008.  Police spoke to her and the appellant.  They both told police the disturbances were only verbal and there were no assaults or threats of violence.  She accepted that police had recorded that the premises were a mess.  The whole establishment was messy.  There was rubbish on the floor at times.
46. [46]
    On the second occasion, police were also told that neighbours would ring when they heard any argument.  Police also spoke to their eldest daughter on the second occasion.  The complainant accepted that police executed search warrants on 15 July 2008 and on 5 April 2012.
47. [47]
    The complainant accepted that at some stage the relationship between her and the appellant became an open relationship.  That led to a female moving into the house.  The appellant began spending more time with the female.  She agreed she sometimes had her own sexual partners during that time.  She agreed she had previously given evidence that the appellant was not the father of her son.  She agreed that she separated from the appellant in early January 2011 for a short period, but denied it was to be with a male she had an affair with for two years.  She also accepted she had a sexual relationship with a neighbour.  She ended that relationship because the neighbour developed feelings for her and there was violence.
48. [48]
    The complainant accepted that when she gave evidence in September 2016, she said the regularity of physical violence from the appellant was “Every day, at least.  At least once or twice a day.  And when I say once or twice a day, I’m not talking about getting hit once or twice …  I’m talking about an episode where I would be hit multiple times in one sitting just because. … I was generally covered in bruises from my shoulder to about my elbows, from my knees up to about my hips … and when I was hit with the knife steel or a belt or a large handled screwdriver, I had welts spanning my entire back.”^[4]  She agreed she had previously given evidence that she felt like she was walking on eggshells.
49. [49]
    The complainant was shown a serious of photographs.  She agreed that in many of the photographs, she could not identify any bruising.  The complainant said she would edit the bruising before she posted it.  She used an app on her phone to make the photograph darker.  In respect of one photograph, she agreed she could not identify any bruising, but said that was because “my hair is covering them … Good tactic with DV victims.”^[5]  In respect of a photograph posted on Facebook on 4 December 2011, the complainant said that she could not identify any bruises, but if you looked closely you could see the other side of her face was swollen.  In respect of a photograph posted on 18 August 2012, the complainant agreed she could not identify any bruises, but said she would have had “that cut” underneath her neck.
50. [50]
    The complainant accepted that apart from what she had said in the hospital in 2006, she had never made a complaint about domestic violence, until she went to Townsville.  She accepted she had many opportunities to report the violence.  She did not accept she had many opportunities to leave the appellant saying, “Not to leave safely.”  When she left on 26 June 2013, she took the children to Townsville.
51. [51]
    In re-examination, the complainant said on each occasion police attended the residence, police spoke to her and the appellant together.  When she told the police there were no assaults or threats, that was not true.  She said those things because the appellant was right next to her.  When she made the complaints of domestic violence in Townsville, she had put “1500 ks between myself and the perpetrator”.^[6]  The appellant was living on the Sunshine Coast.  They were no longer in a relationship.  The complainant said she did not retract her evidence about suffering bruising every day.  The photographs she posted at that time were for social media purposes and “you definitely don’t post the ones that show how your life actually are”.^[7]

Consideration

Ground 1

52. [52]
    The determination of a ground of appeal that the verdict of the jury was unreasonable and not supported by the evidence, requires an appellate court to undertake its own independent assessment of the record as a whole, to determine whether it was open to the jury to be satisfied of the appellant’s guilt of the offence, beyond reasonable doubt.^[8]  The Court proceeds on the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable.^[9]
53. [53]
    In reaching a conclusion, due regard is given to the jury’s role in a criminal trial and the advantages afforded to it, by having seen and heard the witnesses.^[10]  However, if on the consideration of the record there are inconsistencies, discrepancies, or other evidence which, allowing for the jury’s role and advantages, are of such a nature that a reasonable doubt ought to have been entertained, the verdict is to be set aside as unreasonable.^[11]
54. [54]
    In the present case, satisfaction of the appellant’s guilt of each of the offences, beyond reasonable doubt, required the jury to be satisfied of the truth and accuracy of the complainant’s evidence as to the commission of each of the offences.  That conclusion follows from the fact that there was no evidence supportive of the commission of any of the offences, other than the evidence given by the complainant.  The admissions only established residency dates and visits to hospitals or by police.  Although there were medical records supportive of times consistent with the commission of the offences, the accounts given at that time were inconsistent with the complainant’s evidence as to what had occurred at the time of those injuries.
55. [55]
    A consideration of the record supports a conclusion that there were inconsistencies in the complainant’s evidence as to some events relevant to each offence and as to what she had said to police on the occasions they attended the residence during the relationship.  There were also inconsistencies in the contents of photographs posted by her during the relationship and her evidence of almost daily domestic violence.
56. [56]
    However, whilst those inconsistencies existed, the complainant was consistent in respect of the core allegations which formed the basis for each of counts 1, 2, 3, 6, 7, 8 and 10.  That core consistency allowed the jury to be satisfied, beyond reasonable doubt, of the truth and accuracy of the complainant’s evidence in respect of each of those counts.  Once the jury was so satisfied, it was open to the jury to be satisfied, beyond reasonable doubt, of the appellant’s guilt of each of those counts.
57. [57]
    The verdicts of guilty of counts 1, 2, 3, 6, 7, 8 and 10 were not unreasonable.

Ground 2

58. [58]
    The principles and considerations relevant to allegedly inconsistent jury verdicts were summarised by Morrison JA in R v Fanning:^[12]

“In MacKenzie v The Queen, Gaudron, Gummow and Kirby JJ held that the test where inconsistency is alleged is one of “logic and reasonableness”:

“… 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.”

Various matters of principle have been settled about the assessment by an appellate court of the issue of inconsistent verdicts. They include:

1. the appellate court must be persuaded that the performance of the jury’s duty has been compromised by verdicts which are an unacceptable affront to logic and common sense, or which suggest confusion in the minds of the jury, or a misunderstanding of their function, or an uncertainty about legal differences between the offences, or a lack of clarity in the instruction on the applicable law;

2. as the test is one of logic and reasonableness, the question is whether a reasonable jury, who had applied their minds properly to the facts in the case, could have arrived at the various verdicts;

3. 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

1. 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.” (citations omitted)

59. [59]
    In the present case, a consideration of the evidence as a whole supports a conclusion that there was a logical and rational basis for the jury to be satisfied as to the truth and reliability of the complainant’s evidence, beyond reasonable doubt, in respect of counts 1, 2, 3, 6, 7, 8 and 10, whilst not being so satisfied in respect of her evidence in relation to counts 4, 5, and 9.
60. [60]
    First, the appellant accepts that there may have been reasonable grounds for the jury to have a doubt as regards counts 4 and 5.  In respect of count 4, not long after the incident the subject of that count, police executed a search warrant on the unit and located no rifle.  In respect of count 5, the complainant accepted, in evidence, that she had recalled for the first time, that the appellant was wearing steel capped boots.  Her explanation, that her memory was better now than at the time she first spoke to police, may have been viewed by the jury as inconsistent with human experience.
61. [61]
    In respect of count 9, no such circumstances arose.  The complainant gave a consistent account which contained details as to how the injury had been sustained.  It was clear, on that account, that it had been inflicted by the appellant.  However, the jury had to also consider whether the photographs, relied upon in support of the complainant’s account, evidenced a scar in the area in which her head hit the shelf.  If the jury was not so satisfied, consistent with the jury’s duty to consider each count separately, it was open to a jury to find that matter of such a nature that it was appropriate to afford the appellant the benefit of a doubt in relation to his guilt of that offence.
62. [62]
    Those circumstances provide a logical and rational basis for the jury’s verdicts of not guilty of counts 4, 5 and 9.
63. [63]
    The verdicts of guilty of counts 1, 2, 3, 6, 7, 8 and 10 are not unreasonable on the grounds of inconsistency.

Ground 3

64. [64]
    At the hearing of the appeal, the appellant conceded that the evidence was sufficient to establish that count 6 had been committed within the dates alleged in that count.  The appellant maintained that the evidence was insufficient to satisfy the jury, beyond reasonable doubt, that the acts said to constitute count 3, had been committed within the dates specified in that count.
65. [65]
    However, a consideration of the complainant’s evidence supports a conclusion that it was open to the jury to be satisfied, beyond reasonable doubt, as to the commission of that offence by the appellant, within those dates.
66. [66]
    The complainant’s evidence was largely given chronologically, based on places in which the complainant lived, with the dates during which the complainant and the appellant had lived at those premises, being the subject of formal admissions.  The complainant’s evidence was that the incident involving the bottle (count 2) occurred before the incident involving the pliers (count 3).  It was admitted that the complainant went to hospital on 17 November 2006, following the bottle incident.  The complainant’s evidence was that the incident involving the pliers occurred before the incident involving the rifle (count 4).  The complainant agreed her evidence was that the incident involving the rifle took place between 1 July 2007 and 30 April 2008.
67. [67]
    Against that background, it was open to the jury to accept that count 3 was committed after 17 November 2006 and before 1 July 2007.  The date range in count 3 was 1 January 2007 and 31 May 2007.  It was alleged that the offence had been committed at Noosa Heads.  There was a formal admission that the appellant and the complainant rented the unit at Noosa Heads between about April 2005 and 26 March 2010.  That admission, together with the complainant’s evident supported satisfaction, beyond reasonable doubt, that the offence was committed whilst at the Noosa Heads residence between those dates.
68. [68]
    This ground fails.

Ground 4

69. [69]
    As part of the summing up, the trial judge provided to the jury a written document.  Part A of it set out the elements of each of the counts.  In relation to counts 1, 2, 3, 8 and 10, the document provided, under the heading “What the Crown must prove”:

“… before [the appellant] can be found guilty of assault occasioning bodily harm, while armed, the Crown must prove each of the following four elements of the offence beyond reasonable doubt:

1. [The appellant] assaulted [the complainant].
2. The assault was unlawful.
3. [The appellant] thereby did [the complainant] bodily harm; that is, any bodily injury that interferes with health or comfort.
4. [The appellant] was armed with a dangerous or offensive weapon or instrument.

As to 1, relevantly any person who strikes, touches or moves or otherwise applies force of any kind to the person of another, either directly or indirectly, without that person’s consent is said to assault that other person.

As to 2, there is no dispute in relation to counts 1, 3, 8 and 10 that if [the appellant] assaulted [the complainant], the assault was unlawful.

As to 3, a sensation of pain alone without the infliction of an identified bodily injury is not sufficient to constitute ‘bodily harm’.

As to 4, this element is not in dispute in relation to any of these counts. In other words, in relation to:

• Count 1– it is not in dispute that the knife is a dangerous weapon.
• Count 2 – it is not in dispute that the bottle is an offensive instrument.
• Count 3 – it is not in dispute that the pliers are a dangerous instrument.
• Count 8 – it is not in dispute that the plastic chair is an offensive instrument.
• Count 10 – it is not in dispute that the sword is a dangerous weapon.”

70. [70]
    In the course of the oral summing up, the trial judge directed the jury by reference to that written document.  In doing so, the trial judge repeated some of its contents.  Relevantly, in respect of counts 1, 3, 8 and 10, the trial judge directed the jury:

“The fourth element is that the defendant was armed with a dangerous or offensive weapon.  If you go to the bottom of that Part A document, on page 1, where it talks about count 4 – about element 4.  It says – as to 4, this element is not in dispute in relation to any of these counts.  In other words, in relation to count 1, it is not in dispute that the knife is a dangerous weapon.

As to count 1, then, what is in dispute is whether [the appellant] assaulted [the complainant].  If you accept that he did, it is not in dispute that it was unlawful.  It is in dispute that there was a bodily injury, which is cutting her in the area of her left jawbone.  It is not in dispute that he was armed with a dangerous weapon, being a knife.  So I hope that is clear.

…

Can I say that the defendant’s case in relation to count 1 is that he did not do it.

…

If you go down to the bottom on page 1 of part A, you will see that dot point there – count 3, it is not in dispute that the pliers are a dangerous instrument.  That element is not in dispute.

…

In relation to count 8 … The fourth element is that [the appellant] was armed with an offensive instrument.  And if you go to the last dot point there in Part A, on page 1 – it is not in dispute that the plastic chair is an offensive instrument.

…

Then, we go to count 10 … it is also not disputed that the sword was a dangerous weapon.  You will see that at the top of page 2 of part A.  I say – Count 10, it is not in dispute that the sword is a dangerous weapon.”^[13]

The appellant submits that the wording of Part A, as to element 4 not being in dispute, was erroneous.  Whilst it was not disputed that a particularised weapon or instrument was dangerous or offensive, it was disputed that the appellant was armed with that weapon or instrument (my emphasis).

71. [71]
    There is substance in the appellant’s contention in respect of such an error.  The jury was directed, in writing, that element 4 namely, “that [the appellant] was armed with a dangerous or offensive weapon or instrument”, was “not in dispute in relation to any of the counts”.
72. [72]
    Whilst the written document did add, after the statement that element 4 was not in dispute in relation to any of the charges, that in respect of each count it was not in dispute that the weapon or instrument was dangerous or offensive, this did not overcome a specific direction that the element that the appellant was armed with the dangerous or offensive weapon or instrument, was not in dispute in relation to any of these counts.
73. [73]
    This error was exacerbated by the contents of the oral summing up.  In respect of count 1, the trial judge specifically directed the jury that it was not in dispute that the appellant was armed with a dangerous weapon, being a knife.  That was plainly wrong.  The jury, following that direction, would have considered the only issue in dispute was whether the appellant had inflicted a bodily injury with that knife, by cutting the complainant in the area of her left jawbone.
74. [74]
    That the jury would undertake its deliberations on that basis, was not overcome by the trial judge’s statement, “Can I say that [the appellant’s] case in relation to count 1 is that he did not do it”.  That observation could readily be understood by the jury, having regard to the contents of the specific direction in respect of count 1, as reinforcing that the issue was whether the appellant had cut the area of the complainant’s left jawbone with the knife, not whether he was armed with a knife.
75. [75]
    Whilst the trial judge did not, in the oral summing up, make a similar specific error in respect of counts 2, 3, 8 and 10, it was open to the jury to understand the repeated reference to “that element is not in dispute”, when dealing with the element in each of the counts that the appellant was armed with a dangerous weapon or offensive instrument, as stating it was not in dispute that the appellant was armed; the dispute was as to whether he used the weapon or instrument to inflict the injury.
76. [76]
    When regard is had to the central importance of that element and what had to be proved by the prosecution, beyond reasonable doubt, this error was productive of a miscarriage of justice.  It was “prejudicial in the sense that there was a ‘real chance’ that it affected the jury’s verdict … or ‘realistically [could] have affected the verdict of guilt’ … or ‘had the capacity for practical injustice’ or was ‘capable of affecting the result of the trial’.”^[14]
77. [77]
    Whilst count 2 was in a different category to counts 1, 3, 8 and 10, in that there was an admission that the appellant threw a bottle, the erroneous directions were capable of prejudicially infecting the jury’s assessment of the complainant’s evidence and therefore their verdicts of guilty in respect of counts 2, 6 and 7 as well as counts 1, 3, 8 and 10.

Ground 5 and 6

78. [78]
    Having regard to the conclusion in respect of ground 4, it is unnecessary to determine these grounds.
79. [79]
    However, in any new trial, depending on the evidence led at trial, consideration will need to be given by the trial judge as to the giving of directions as to the use of any consistent and inconsistent statements and as to a warning against propensity reasoning.  Particular regard will also have to be had to the provisions of the Evidence Act 1977 relevant to the admission of relationship evidence.

Orders

80. [80]
    I would order:

1. The appeal be allowed.
2. The verdicts of guilty of counts 1, 2, 3, 6, 7, 8 and 10 be set aside.
3. There be a new trial.

81. [81]
    DOYLE AJA:  I gratefully adopt Boddice JA’s summary of the allegations, evidence and outcome at trial, and the matters raised on appeal.
82. [82]
    I agree with his Honour’s reasons for rejecting Ground 1 (unreasonable verdicts), Ground 2 (inconsistent verdicts) and Ground 3 (date of offending not proven).  I make some brief additional observations below in further support of the rejection of Grounds 2 and 3.
83. [83]
    I have reached a different view in relation to Ground 4 (erroneous written directions as to the elements of Counts 1-3, 8 and 10), and would reject this ground of appeal.
84. [84]
    However, I would allow the appeal on Ground 6 (inadequate directions in relation to other charged and uncharged acts), and so agree with Boddice JA that the appeal should be allowed.
85. [85]
    I have not found it necessary to address Ground 5 (directions in relation to prior consistent and inconsistent statements).

Ground 2: inconsistent verdicts

86. [86]
    Boddice JA has explained that the verdict of acquittal on Count 9 may be properly reconciled with the verdicts of guilty on various other counts on the basis that the jury may not have been satisfied that the photographs relied upon in support of the complainant’s account in fact evidenced a scar on her head.
87. [87]
    In my view, the verdict of acquittal on Count 9 may also be properly reconciled with the verdicts of guilty on the basis of the general, if not vague, terms in which the complainant described the assault said to constitute this count.
88. [88]
    The totality of the complainant’s evidence in support of this account was as follows:

“There was an incident relating to us arguing.  I don’t remember what we were arguing about, but I went to the bedroom, specifically the walk-in cupboard, to get away from him.  And he followed me and came up behind me and hit my head into one of the wooden shelves.”

89. [89]
    Although capable of amounting to a description of an assault, the complainant’s evidence as to this incident was particularly general.  Whilst alleging that the appellant hit her head into a shelf, she did not give any more precise explanation as to the mechanism by which this occurred – whether the appellant did so by hitting or pushing her, and, if so, whether he used his hand or hands or did so in some other way, and where on her body he hit or pushed her.
90. [90]
    It is true that the complainant’s evidence in relation to some of the other counts was also fairly general, and that defence counsel did not seek to challenge the complainant’s description of the mechanics of this count through his cross-examination or closing address.  But her evidence in relation to this count was nevertheless very general in its terms.  In my view, the general, if not vague, terms in which the complainant described this incident provided a logical and rational, even if somewhat merciful, basis for the jury declining to convict on this count without impugning the basis for their satisfaction of guilt in relation to the other counts on which they convicted.

Ground 3: date of the offending

91. [91]
    Boddice JA has explained the basis upon which it was open to the jury to have been satisfied beyond reasonable doubt that Count 3 was committed during the range of dates included in the particulars of that count.
92. [92]
    I would merely add that, in my view, this ground of appeal also fails on the basis that the dates given in the indictment were not in any event material particulars.
93. [93]
    In the ordinary course, it is not necessary for the prosecution to prove beyond reasonable doubt that an alleged offence occurred on the precise date, or within the precise range of dates, identified in the indictment.  Often dates are specified merely so as to provide reasonable notice of the case the defendant has to meet, without those dates forming an element or material particular of the case to be proved.^[15]
94. [94]
    There will be cases where the nature of the allegations or offences,^[16] the issues in dispute, or the way the trial is conducted,^[17] mean that the alleged date or timing becomes material.  That may be so, for example, where the offence is one which turns on the age of the complainant; where the defence case includes an alibi or lack of opportunity; where forensic decisions have been made on the basis of the alleged date or timing; or where a failure to adhere to the alleged date or timing might result in confusion or ambiguity in the prosecution case, or otherwise prejudice the defence case.
95. [95]
    However, in the present matter, I do not consider that there was anything about allegations or offences, the issues in dispute, or the way in which this trial was conducted, that made proof that the Count 3 incident occurred within the precise range of dates specified in the indictment material to that count being made out.  Indeed, counsel for the appellant accepted that she could not identify any prejudice to the appellant, whether arising out of the way the trial was conducted or otherwise, in allowing for some flexibility in this regard.
96. [96]
    In those circumstances, the dates alleged in relation to Count 3 were not material particulars, and any failure to prove that the offence was committed during the specified range of dates was not fatal.

Ground 4: elements of Counts 1-3, 8 and 10

97. [97]
    Counts 1-3, 8 and 10 involved allegations of assaults occasioning bodily harm whilst armed with a dangerous or offensive weapon or instrument.
98. [98]
    As Boddice JA has explained, on a literal reading of the written directions provided to the jury, they may be taken to have suggested that it was not in dispute that the appellant was armed for the purposes of determining Counts 1-3, 8 and 10.  However, understood in the context of the trial, and in particular the trial judge’s summing up considered as a whole, I do not think there is any risk the jury would have been left with this impression or understanding.
99. [99]
    In relation to Count 1 (assault involving a knife), Count 3 (assault involving pliers), Count 8 (assault involving a plastic chair) and Count 10 (assault involving a sword), the issue at trial was whether the relevant incident or assault occurred at all.  The defence case was that the appellant did not do what was alleged.  In relation to Count 2 (assault involving a bottle), there was no dispute that the appellant threw a bottle at the complainant.  The defence case was that this was an accident; that he did not intend to hit the complainant’s head.
100. [100]
     The matters in dispute would have been clear to the jury from the outset, including from the way the cross-examination of the complainant, and trial more generally, were conducted.  The closing addresses were also framed in terms that focussed upon the issues as described above.
101. [101]
     Turning to the trial judge’s summing up, the written directions provided for the jury’s assistance included the Part A document summarised in Boddice JA’s reasons.  That document included a list of the elements of the assault occasioning bodily harm whilst armed offence: (1) the appellant assaulted the complainant; (2) the assault was unlawful; (3) the appellant thereby did the complainant bodily harm; and (4) the appellant was armed with a dangerous or offensive weapon or instrument.
102. [102]
     After some further assistance in relation to the first three elements, the written directions stated that “[a]s to 4, this element is not in dispute in relation to any of these counts.”  Taken literally, and in isolation, this might be taken to suggest that it was not in dispute that the appellant was armed on each of the occasions alleged by the complainant.  This, of course, would have been incorrect.  However, in addition to the earlier trial context, summarised above, the balance of the judge’s summing up provided further important context.
103. [103]
     First, immediately following this reference to element 4 not being in dispute, the written directions explained or qualified this statement with the words:

“In other words, in relation to:

• Count 1 – it is not in dispute that the knife is a dangerous weapon.
• Count 2 – it is not in dispute that the bottle is an offensive instrument.
• Count 3 – it is not in dispute that the pliers are a dangerous instrument.
• Count 8 – it is not in dispute that the plastic chair is an offensive instrument.
• Count 10 – it is not in dispute that the sword is a dangerous weapon.”

104. [104]
     Secondly, as set out in Boddice JA’s reasons, the judge’s oral directions repeated some of the content of the written directions in the Part A document.  This included reference to element 4 not being in dispute, but once again also included an explanation making it clear that this lack of dispute related to the relevant object alleged to have been used in the assault being a dangerous or offensive weapon or instrument.  The explanations for each of Counts 1, 3, 8 and 10 made it plain that the dispute was whether the assault occurred, adding that if the jury accepted that it did, then the remaining elements were not in dispute.  Her Honour concluded her oral directions in relation to each of these counts by reiterating that “[t]he defendant’s case in relation to all these counts, apart from count 2, is that he did not do it”.  The judge then addressed Count 2 separately, explaining that “[t]he defendant’s case here is that the bottle was thrown, but the striking of her head was an accident”.
105. [105]
     Thirdly, the written directions provided to the jury also included a Part B document which summarised the complainant’s allegations in relation to each of the counts.  In the case of each of Counts 1-3, 8 and 10, the Part B document set out the circumstances of the alleged assault and the object with which the appellant was alleged to have been armed.  In the case of each of Counts 1, 3, 8 and 10, the summary in the Part B document concluded with a statement that “[t]he defendant’s case is that he did not do this”.  This was plainly a reference to the defence case that he did not assault the complainant with the object alleged.  In the case of Count 2, it included reference to the defendant’s case being that what occurred was an accident.
106. [106]
     Whilst the references to element four not being in dispute were perhaps unfortunate, I do not think the jury would have been under any misapprehension as to what was in dispute.  The complainant’s evidence as to each of the incidents underpinning Counts 1-3, 8 and 10 involved assaults with objects.  The jury would have understood that the defence case was that the alleged assaults did not occur at all or, in the case of Count 2, involved an accident.  This was not a case in which the jury were invited to conclude, or might otherwise conclude, that the assaults occurred without the use of the objects described.  Acceptance of the prosecution case meant acceptance of an assault using an object; that is, an assault in which the defendant was armed.  In the case of Counts 1, 3, 8 and 10, the issue was whether the assaults occurred at all; in the case of Count 2, the issue was whether an accident could be excluded.
107. [107]
     Understood in this way, the issue of whether the appellant was armed was part and parcel of the jury’s consideration of the first element of each count.  The jury would have understood that whether the appellant was armed was in dispute in relation to Counts 1, 2, 8 and 10, but with their consideration of that issue effectively subsumed within their consideration of the first element.  Indeed, in circumstances where the complainant’s allegations were that the appellant used objects to assault her, it would not have made much sense for the jury to have given separate consideration to first, whether there was an assault, and then secondly, whether that occurred whilst the appellant was armed with an object.
108. [108]
     If the jury accepted that the first element of each offence was established, then it followed from the nature of the case, and the way it was conducted, that they accepted that the appellant was armed with an object.  In that circumstance, there was really no additional work or content for the fourth element, save to establish that the object with which the assault was committed was a dangerous or offensive weapon or instrument.  The jury were accurately directed that this was not in dispute in relation to any of the objects alleged to have been used in Counts 1-3, 8 and 10.
109. [109]
     In the circumstances, I am not persuaded that the impugned directions occasioned any miscarriage of justice.  Accordingly, I do not consider that Ground 4 has been made out.

Ground 6: directions as to other charged and uncharged acts

110. [110]
     Ground 6 involves a complaint as to the adequacy of the trial judge’s directions in relation to the permissible and impermissible uses of the evidence of other charged and uncharged acts.
111. [111]
     The appellant faced a trial of ten separate counts of violence (the ‘charged acts’), all of which occurred during the course of a lengthy de facto relationship with the complainant.  The evidence at trial, elicited through cross-examination of the complainant, included evidence of a good deal of discreditable conduct by the appellant.  The evidence of these ‘uncharged acts’ included evidence of daily assaults of the complainant causing bruising, and the use of cannabis and methylamphetamine.
112. [112]
     The trial judge’s summing up included a direction to consider each charge separately, as well as general directions confining the use of the uncharged acts to relationship or contextual evidence, and warning against propensity reasoning.  These directions broadly adhered to those suggested in the Bench Book.  Further, they were given in a context in which the prosecution did not expressly seek to rely upon propensity reasoning, and in which neither party sought any further direction or redirection from the judge.
113. [113]
     Despite this context, the appellant now complains about the adequacy of the trial judge’s directions in relation to the permissible and impermissible uses of both the other charged and uncharged acts.
114. [114]
     The starting point in considering the appellant’s complaints on appeal is recognition that the fact of multiple similar allegations and charges involving the same victim does not always necessitate a propensity warning, or other specific directions about the use that may or may not be made of the evidence in relation to these other allegations or charges.  As McHugh J explained in KRM v The Queen,^[18] a separate consideration warning will in some cases suffice.
115. [115]
     On the other hand, there are a number of cases which recognise the risk of juries engaging in inappropriate propensity reasoning, or reasoning inappropriately from the general to the specific,^[19] in cases where there are multiple allegations of wrongdoing.  That is particularly so where the trial includes evidence of uncharged acts which has been led as relevant only to the relationship between the parties or other contextual matters.^[20]  In such cases, there will often be a need for careful directions addressing both the permissible and impermissible use to be made of evidence of the charged and uncharged acts.^[21]
116. [116]
     In HML v The Queen, Kiefel J described the style of direction that might be given in relation to so-called relationship evidence:^[22]

“Relationship evidence is also admissible for the more limited purpose of providing answers to questions which might naturally arise in the minds of the jury, such as questions about the complainant’s reaction, or lack of it, to the offences charged, or questions about whether the offences charged were isolated events.  These examples are not exhaustive.  It follows that no more evidence than is necessary to answer the inquiry could be considered relevant.  Admissibility for this purpose is conditioned by the requirement of a direction to the jury as to the limits on the use to which the evidence can be put.”

117. [117]
     Returning to the circumstances of the present case, I have mentioned that the prosecution did not directly seek to make any propensity use of the other charged or uncharged acts.  However, in addition to the inherent risk of such reasoning given the nature and extent of the evidence of discreditable conduct by the appellant, the prosecutor’s address did at times, perhaps unintentionally, raise the spectre of such reasoning.
118. [118]
     For example, in addressing Count 2 (the bottle throwing incident), the prosecutor drew on the evidence of the appellant’s discreditable conduct in support of his submission that the appellant’s conduct in throwing the bottle at the complainant was intentional rather than accidental:

“But now that you know the full extent of the relationship between [the complainant] and [the appellant], you might think, well, he intended to throw it at her or that he certainly foresaw it would strike her.”

119. [119]
     The prosecutor also made the following submission by way of summary, and in relation to the complainant’s credibility:

“… to further appreciate the nature of the circumstances [the complainant] was in and the survival that she was struggling to achieve, let’s try and remember that almost every count on this indictment involves the use of a weapon.  At least half of the counts involve use of a weapon.  Knife in count 1; loaded and cocked rifle, count 4; broadsword to the throat, count 10. … Those were lethal weapons applied at lethal locations.  …

But it didn’t stop there, did it? Because the violence also incorporated weaponising mundane objects. … So the bottle … pliers … [a] chair, plastic chair.  And a wardrobe shelf.  [The complainant] found herself in a situation where there was literally nowhere that she could be in her house and not be in fear of some level of significant violence, whether it be from a lethal weapon or from mundane objects …

… So you have all of that in their relationship when you’re assessing the significance of these lies and her behaviour.  You have all of that in the relationship but then you have something else and that is the coldblooded determination at whim by [the appellant] to inflict harm and where do you see that?  The steel cap boots at her throat.  The twisting of her ankle.  Think about that.  Think about what level of determination and what level of deliberation involves grabbing a person by the ankle and twisting it until it cracks.  That was the person she was under the one roof with.  And that is the circumstance – a crucial circumstance to consider when you’re assessing her credibility.

And I pose to you this rhetorical question:  given that the circumstances that [the complainant] found herself, given that those circumstances developed over time, what would make her account more credible, an unvarnished telling of the truth to anyone who would listen, including doctors or the police, or a line about what happened so that she could survive and take care of her children?  You might think that if all these things were happening to her and she told the police and she told the doctors, you might think, you’ve got to be kidding, why are you still there? But if she’s trapped and in survival mode, it all makes perfect sense.”

120. [120]
     Quite apart from its emotive terms, this submission had the effect of blending the evidence of the charged and uncharged acts, with all of it said to be relevant in assessing the complainant’s credibility.
121. [121]
     Defence counsel, in her address, sought to deal with the evidence of uncharged acts by suggesting that the complainant’s evidence of daily violence and bruising was incredible given the photos in evidence which showed the complainant looking well groomed and without any apparent injuries or bruising.
122. [122]
     In the course of her summing up, the trial judge gave a separate consideration direction in the following terms:

“We have got the 10 counts here.  I just thought it would be worthwhile to talk to you now about how it is that you approach those.  Separate charges are preferred.  You must consider each charge separately, evaluating the evidence relating to that particular charge to decide whether you are satisfied beyond reasonable doubt that the prosecution has proven the essential elements that make up that charge.  You will be returning separate verdicts for each charge at the end of the trial.  The elements of the offences, or some of them, are different, as is the evidence in relation to each of them, so your verdicts do not need to be the same.”

123. [123]
     This was followed by a Markuleski^[23] direction, with her Honour then giving the following directions in relation to the evidence of uncharged acts:

“You have heard evidence of other conduct apart from that relating to each of the 10 offences.  It is conduct which has taken place between the defendant and the complainant.  You might find, for example, that [the complainant] said that the photo – which is exhibit 7Q – shows a bruise on her face that was caused by the defendant punching her.  You might also find that she said the defendant had subjected her to physical violence at least once or twice a day and she would be hit multiple times on each of these occasions, and that she was generally covered in bruises on a daily basis.  You also might find that she said that she had been hit with a knife, some steel, a belt, and a large screwdriver, and that she had welts spanning her entire back.  You further heard evidence regarding the defendant’s use of illicit substances, namely methylamphetamine and cannabis.  You must understand that the relevance of this evidence about other occasions of violence, and also the defendant’s lifestyle choices, that the relevance of this is limited.  If you accept this evidence, it does not make it more probable that the defendant committed any of the alleged offences, because that evidence is relevant only to answer questions which you might naturally have about the background to these incidences which the Prosecution allege are the charged offences.”

124. [124]
     In my view, these directions were not adequate to guard against the risk of the jury engaging in propensity style reasoning in relation to the evidence of charged and uncharged acts, and to ensure the jury’s use of the uncharged acts was confined to its permissible use as so-called relationship evidence.  In support of this conclusion, I make several observations.
125. [125]
     The separate consideration warning, whilst orthodox, did not go as far as McHugh J contemplated in KRM v The Queen.^[24]  It did not include any direction to the jury prohibiting them in clear terms from using evidence led on one count to reason towards guilt on another count, by engaging in propensity reasoning between counts.
126. [126]
     The directions in relation to the uncharged acts, whilst generally reflecting the Bench Book direction, were not adequate for the circumstances of this case.  They touched on the permissible and impermissible uses of this evidence, but in such general terms that they left a risk that the jury might engage in impermissible reasoning.
127. [127]
     The impermissible use of the evidence of uncharged acts was described only in very general terms, namely that the evidence “does not make it more probable that the defendant committed any of the alleged offences”.  It would have been preferable had the jury been more directly and clearly warned against any form of propensity reasoning, whether by reference to a propensity on the part of the appellant to engage in violent conduct in the context of his relationship with the complainant, or by reference to more crude or simplistic ‘bad person’ reasoning.
128. [128]
     The risk associated with the general terms in which the jury were warned against the impermissible use was exacerbated by the equivalently general, if not elusive and obscure, description of the permissible use of the evidence of the uncharged acts.  The trial judge said that it was “relevant only to answer questions which you might naturally have about the background to these incidences which the Prosecution allege are the charged offences”.  In my view, this was unlikely to have been of much assistance to the jury in understanding the permissible use of the evidence.
129. [129]
     It would have been preferable had the jury been informed of the use in terms more closely aligned with the descriptions of the relevance of such evidence given, for example, by Kiefel J in HML v The Queen^[25] and Hayne J in KRM v The Queen.^[26]  In other words, rather than simply referring to the evidence being relevant to answer some unidentified questions which might arise, it would have been helpful for the judge to have described the potential relevance of the evidence in explaining the relationship and context in which the charged incidences occurred, in making it plain that these incidents did not – on the complainant’s evidence – occur ‘out of the blue’, in explaining the complainant’s reaction, or lack of reaction, to the various incidences, and hence in assessing the plausibility of the evidence as to the parties’ conduct.
130. [130]
     In summary, whilst the directions went some way to addressing the risk of the jury making impermissible use of the evidence of other charged and uncharged acts, I am not satisfied they were adequate for this purpose.  Given the significant extent, and prejudicial nature, of the evidence of domestic violence by the appellant, more detailed and precise directions were required.
131. [131]
     I have not overlooked the significance of the failure of defence counsel to seek any more specific directions or redirection, and of the fact that the jury did return verdicts of not guilty in relation to some counts.  However, in the circumstances I have described, I am satisfied there was a miscarriage of justice.

Conclusion

132. [132]
     In circumstances where I consider it appropriate to allow the appeal on Ground 6, I do not consider it necessary to address Ground 5.
133. [133]
     For the reasons given, I would allow the appeal, set aside the verdicts of guilty on Counts 1-3, 6-8 and 10, and order a new trial.