R v JAL[2025] QCA 17

SUPREME COURT OF QUEENSLAND

1. [1]
   DALTON JA:  I agree with the order proposed by Brown JA, and with her reasons.  I wish to add some short remarks of my own.

Inconsistency

2. [2]
   The verdict on count 1 was not inconsistent with the other verdicts brought in by the jury in the sense spoken of in MacKenzie v The Queen.^[1]  The offending alleged at count 1 occurred on a different date and was different offending, although it might all be seen as offending associated with a marriage breakdown.
3. [3]
   The offending charged at count 1, like the offending charged at counts 2 to 5, very much depended on the complainant’s evidence.  There were difficulties with the complainant’s evidence in relation to all counts but, for the most part, the difficulties with her evidence as to count 1 were different from the difficulties with her evidence as to counts 2 to 5.  This is significant, as all that can be drawn from the not guilty verdicts is that the jury had a reasonable doubt about those counts.  The not guilty verdicts cannot be interpreted as meaning that the jury rejected the complainant’s evidence as being entirely false or unreliable.  Having a reasonable doubt about some aspect of the offending charged at counts 2 to 5 does not necessarily mean that the jury could not have been satisfied with the complainant’s evidence beyond reasonable doubt in relation to count 1.
4. [4]
   There was some evidence from sources other than the complainant in relation to all the counts.  It might be thought that the evidence of the complainant’s friends in relation to count 1 was objectively stronger than the medical evidence and the evidence from the friend on the telephone in relation to counts 2 to 5.  The medical evidence was of a fairly general nature, and the evidence from the friend on the telephone, whilst consistent with the complainant’s evidence, did not actually add any objective support to the complainant’s evidence that offending took place on the occasion in September 2018.
5. [5]
   In contrast, both the friends called in relation to count 1 gave evidence that they saw marks on the complainant’s neck.  If that evidence were accepted, it provided strong support to the complainant’s allegation of choking.  The jury were entitled to have regard to the fact that one of the complainant’s friends took photographs of the marks in circumstances where there was no other reason suggested for the taking of photographs other than to document injuries apparent on the complainant’s neck.  The friend used her phone to take the photos and then stored the photos on her computer.  Cross-examination of her was brief, and her evidence was not shaken.  The meta-data associated with the photos proved the date on which they were taken – four days after the choking occurred.  The jury was entitled to regard the photos, and the evidence about why they were taken, as strong evidence in the Crown case, and much stronger objective evidence than existed in relation to any other count.  Further, the existence of the photos may have made it easier for the jury to accept the evidence of the friend who said she saw marks on the complainant’s neck on the day of the choking.
6. [6]
   This case is one like MFA v The Queen:^[2] there were distinct bodies of evidence supporting the allegation at count 1 on the one hand, and counts 2 to 5 on the other hand.  A jury acting properly and rationally was entitled to accept one body of evidence beyond reasonable doubt, but not the other.

Other Unreasonableness

7. [7]
   As to the part of the appellant’s case which rested on The Queen v M,^[3] it must be acknowledged that this case is a hard case, as there were considerable difficulties with the complainant’s evidence in relation to count 1.
8. [8]
   There was a considerable delay before this offending was reported to police, made more significant by the fact that the offending which was the subjects of counts 2 to 5 was reported to police almost a year before the offending which was the subject of count 1.
9. [9]
   Originally, the complainant told police that the offending occurred on 14 January 2018, when that could not have been the case having regard to the fact that the photos said to be bruises caused by the choking, were taken on 4 January 2018.  Once this was raised during preparation of the Crown case, there was then some further confusion in the complainant’s statements to police about whether the offending happened on 30 December or 31 December 2017.  Difficulties in the evidence about the date of the choking were not insurmountable.  The jury knew of the delay between the offending which was the subject of count 1 and the report to police.  That delay was for a period of nearly three and one-half years.  The complainant said she originally used text messages saved on her phone to place the offending on 14 January.  It was open to a jury acting properly and reasonably to understand that, as it was open for them to understand inaccuracy as to dates in the version given to one of the complainant’s friends (that the appellant had put his hands around her neck during the New Zealand trip).
10. [10]
    There were credit issues surrounding the complainant’s evidence about the date of the offending.  There had been out of Court discussions as to the evidence between the complainant and the friend with whom she had coffee on the morning of the offending, and untrue statements about those discussions on oath at the trial.  There were what appeared to be contemporaneous diary notes recording the offending made by the complainant.  Cross-examination revealed they were not contemporaneous and the jury was entitled to think the complainant at least obfuscated about this in her sworn evidence.  These were certainly matters for the jury to consider.  However, they are matters which probably assume more significance to lawyers than to lay people, and which a jury might be inclined to overlook as stemming from normal human reactions and behaviours, rather than as matters which necessarily caused them to disbelieve the complainant in relation to her evidence of the offence having taken place.
11. [11]
    The appellant relied upon the light-hearted tone of the text message exchange between the complainant and the friend she arranged to have coffee with soon after the choking as being inconsistent with the offence having just taken place.  Similarly, but perhaps more seriously, the appellant relied upon the complainant’s discussing with a GP her domestic problems four days after the offending took place, but not mentioning the choking or showing her doctor the bruises, and saying to the doctor that her domestic situation was improving because the appellant had calmed down since their return from New Zealand.  Further, in this category, the appellant relied upon the many complaints made by the complainant to the appellant about their relationship and his behaviour a week after the offending in a recorded conversation.  The complainant did not complain of the choking in this conversation, and when the appellant said he had not physically hurt her, she did not contradict him.
12. [12]
    The second and third of these matters certainly would have to give a jury acting properly and reasonably cause to carefully consider the complainant’s evidence in relation to count 1.  However, in my view they do not mean that the jury was bound to reject the complainant’s evidence.^[4]  Her evidence was that she was in a domestically violent relationship, where the appellant used coercive control, and where she felt fearful and unhappy.  If the jury accepted that evidence, it is enough to neutralise all these three points, and allow the jury to accept her evidence about the choking beyond reasonable doubt.
13. [13]
    In my view, the most difficult evidence for the complainant was her repeated failure to mention the choking when making affidavits in the Family Court proceedings.  In several affidavits she specifically listed numerous other incidents which she claimed were incidents of domestic violence, and swore to versions of events as to the offending of September 2018 (counts 2 to 5).  In conjunction with this, as already noted, she made a statement to the police in June 2020 complaining of offending in September 2018, but made no complaint to police about the choking until April 2021.
14. [14]
    At trial, and on appeal, reliance was placed on the timing of the allegations of choking – after the family law proceedings became increasingly hostile and at a time when the appellant had obtained a protection order against the complainant, and sought custody of their two children.  This was said to show a motive to make a false allegation of choking.  That was something for the jury to consider, but was not, in my view, a matter which compelled them to disbelieve the evidence of choking.  Other motives are open to be inferred from the timing, including that the complainant had hoped not to have to rely upon such serious physical violence as was comprised in the choking offence (for example, from feelings of shame, or protection of the children she and the appellant had), but felt driven to use everything at her disposal when the issues in dispute in the Family Court grew more serious and hostile.
15. [15]
    While the complainant had the opportunity to complain about the choking to police, and arguably should, as well as could, have complained about the matter in her Family Court affidavits at a much earlier stage than she did, the fact remains that her complaint about the choking was supported by photographs taken on 4 January 2018.  This was strong evidence in the Crown case.  No reason inconsistent with the complainant’s evidence, and the evidence of the friend who took the photos, was proffered as to why these photos should have been taken that day.  As already noted, the existence of the photos may have inclined the jury to more readily accept the evidence of the friend who saw marks on the complainant’s neck on the day of the choking.  Both witnesses’ evidence corroborated the offence of choking having taken place.
16. [16]
    Looking at all the evidence in the case, it cannot be said that the jury must have rejected the complainant’s evidence about the choking.^[5]  The constitutional arbiter of questions of fact is the jury.  This Court has not seen or heard the witnesses, and although this is a very difficult case, I do not think that the appellant has demonstrated that this Court ought to enter an acquittal.
17. [17]
    BROWN JA:  The appellant appeals his conviction for one count of choking in a domestic relationship.  The complainant is his former wife.  They were married at the time of the offending.  In December 2017 the complainant had informed the appellant she wished to separate.
18. [18]
    On 12 December 2023, the appellant was arraigned on an indictment containing the following counts:

    1. Choking in a domestic setting (count 1);
    2. Wilful damage (count 2);
    3. Common assault (count 3);
    4. Assault occasioning bodily harm, while armed (count 4); and
    5. Common assault (count 5).
19. [19]
    On 13 December 2023, at the conclusion of the Crown case, a directed verdict of not guilty was delivered with respect to count 3.  On 15 December 2023, the jury found the appellant guilty on count 1, and not guilty with respect to counts 2 and 4.  The jury could not reach a verdict with respect to count 5, which was subsequently the subject of a nolle prosequi.
20. [20]
    The appellant was sentenced to eighteen months imprisonment wholly suspended for two years.
21. [21]
    There were two grounds of appeal.  The first was that the verdict was unreasonable because it was not supported by evidence.  The second was that the guilty verdict on count 1 was inconsistent with the guilty verdicts on counts 2 and 4.  The written outline of argument and oral argument at the hearing tended to conflate these two grounds of appeal and the Court asked for clarification.  A supplementary outline was filed on behalf of the appellant which made it clear that the two grounds were advanced independently of each other, albeit both grounds were said to give rise to an unreasonable verdict.^[6]  Had any hybrid argument been advanced, I would have rejected it for the reasons given in R v BEN.^[7]

Evidence at Trial

22. [22]
    The appellant’s outline of submissions summarises the evidence at trial, the particulars of offending and the verdicts.  The Crown agreed with the summary provided by the appellant and accepted that it can be relied upon as the framework for considering the ground of appeal.  The Court however must carry out its own independent assessment of the evidence.

The Complainant’s Evidence

23. [23]
    The complainant gave evidence via video link.  She and the appellant had known each other for about 20 years and were married in 2005.  They divorced in 2019.
24. [24]
    According to the complainant, she told the appellant that the relationship was over on 14 December 2017 when they were together in New Zealand for a wedding.  They returned to the family home in Everton Hills on or about 29 December 2017, where they slept in separate bedrooms.
25. [25]
    The complainant recalled an incident that occurred on 31 December 2017 when she was sleeping.  She described feeling the bed move as though someone else was on it.  As she began to wake up, she felt a hand on her throat and a little pulling of her hair.  She then felt her throat being squeezed and pressure being applied for perhaps three to four seconds, during which time she struggled to breathe.  She woke up to find it was the appellant.  He immediately let go, she sat up and she asked the appellant why he had done that.  She did not give evidence of any answer.  She stated she did not give him permission to do what he did.  This incident was the subject of count 1.
26. [26]
    Later that day, she went to Chermside, and met up with a friend, JW, at a café because she wanted to leave the house.  She had texted her friend at 7.20 am that morning and asked if she was available.  JW gave evidence.
27. [27]
    According to the complainant, she had some bruises on the left-hand side of her neck as a result of the incident.  She later arranged for a friend, CB, to take some photographs on or about 4 January 2018.  The date of the photographs was confirmed by metadata.  She identified the bruises on photographs as being consistent with what she saw on her neck.  The photographs identified as being the complainant’s neck were exhibits 1 and 2.  CB gave evidence.
28. [28]
    By 23 September 2018, the appellant had moved out of the family home.  The complainant had commenced a relationship with a new man, DB, in about August 2018.  On 23 September 2018 at around 8.00 am, the complainant heard the garage door open.  DB’s motorbike was in the garage.  She was not expecting anyone.  She knew because the garage door was activated and opened that the appellant was coming into the house.  She heard the appellant banging on the front door and saying such things as, “Whose effing bike is this?”, and “You slut”, “You whore”, “Get out here”, and “Look what your mother is doing”.^[8]  Although the appellant had the children with him, there were no arrangements for him to be present that day.  DB gave evidence.
29. [29]
    The complainant gave evidence that the appellant returned the following day, 24 September 2018, at about 6.30 pm.  She said that he had her cat in his arms and called out for the children to open the door.  He then came inside, put the cat down and announced that he was going to collect some stuff.  The complainant said that he started roughly removing pictures from the wall, damaging the wall in the process, which was the subject of count 2.  She stated that there was gouging in parts of the wall and paint off the corner of pictures.  She stated he got one or two pictures off the wall before he stopped doing it.  She gave evidence that he damaged the wall which she subsequently had to get repaired.
30. [30]
    After the appellant stopped trying to remove pictures he then started rummaging through cupboards and unplugging electronics in the rumpus room, but did not damage the entertainment unit in the process.  She asked him to stop.
31. [31]
    The complainant stated she then attempted to telephone CB and then another friend, JD.  She stated that CB did not answer and, when she was ringing JD, the appellant took her phone from her and held it in the air so that she could not reach it.  JD gave evidence.  The complainant tried to get the phone back “by trying to reach and climb him” but she couldn’t reach the phone.^[9]  This conduct was the subject of count 3.  The alleged assault was said to have occurred when the appellant pushed the complainant when she was trying to get the phone.
32. [32]
    The complainant did not, however, give evidence that the appellant pushed her whilst the appellant was holding her phone out of her reach.  As a result, the complainant’s evidence did not come up to proof and count 3 was not proven.  The jury were directed to enter a verdict of not guilty.
33. [33]
    The complainant stated that after motioning to throw the phone across the room, the appellant ran towards the front bathroom - which had a lockable door.  The complainant got there shortly after him and stated that she threw herself into the door frame of the toilet door to stop the door being shut.  She stated the door opens “into the door” so the hinge is on the right-hand side and the door handle on the left-hand side.^[10]  She stated that she moved in as the door was closing.  She stated she was jammed against the doorframe with the door being pushed behind her.  According to her, the appellant then tried to force the door closed against her back, prompting her to complain that he was hurting her.  This conduct was the subject of count 4.
34. [34]
    The complainant said that once she got freed from that position she then ran for the home phone which was back towards the rumpus room.  She stated that she managed to dial two zeroes before the appellant took the phone from her.  He held the phone up in the air.  The complainant said that she was “practically climbing him” to get the phones back and the appellant with his free hand shoved her to the floor around the shoulder.^[11]  That conduct the was the subject of count 5.  He then threw the phones on the ground.
35. [35]
    The complainant said that she had injuries to her thighs, ankles and back as a result of the incident.  The injuries were on her left-hand side and down the middle of her back and somewhere around her ankles.  A couple of days later, she went to see her GP, and said she was experiencing pain.

Cross-examination of the Complainant

36. [36]
    The complainant was cross-examined extensively.
37. [37]
    In cross-examination the complainant gave the following evidence.
38. [38]
    The complainant had decided to leave the appellant while they were in New Zealand in December 2017.
39. [39]
    Shortly after their return from New Zealand, on 30 December 2017, the complainant spent $200 on groceries.  When she got home from shopping, the appellant had asked her what she had spent the money on and wanted to check the receipt.  She was the breadwinner of the household at the time.
40. [40]
    The cross-examination highlighted the complainant’s inconsistent recollection in a number of respects, particularly as to the timing in respect of when the incident constituting count 1 occurred.
41. [41]
    The complainant’s  evidence as to the incident having occurred on 31 December 2017 was that it had occurred between 6.00 am and 7.00 am on the morning of 31 December 2017.  At 7.20 am, within 1 hour 20 minutes or perhaps as little as 20 minutes after the incident, she had texted JW saying: “Hi, sweet.  Thinking of going to Chermside today.  What are you up to?”.^[12]  She had what could be characterised as a light-hearted exchange with JW.  The complainant stated that she had put makeup on to hide the bruises before meeting JW.  She stated the bruises were only just starting to appear on her neck and were slightly purple.  She stated that she had one mark on the right-hand side and two or three on the left-hand side which were smaller than a ten-cent piece and slightly oval.
42. [42]
    On 26 June 2020, the complainant first made a complaint of choking by the appellant to the police.  At the time she alleged that the incident had occurred on 14 January 2018.
43. [43]
    The complainant had been to see Dr Englhofer on 4 January 2018.  During the consultation, the complainant did not mention the choking, although she did say that the appellant had been verbally and emotionally abusive in New Zealand after learning about her wanting a separation.  She also told Dr Englhofer that he had “calmed down since he returned to Australia” and that she was “safe at home”.^[13]  The complainant said that she had put makeup on her neck to conceal the bruises from the doctor.  She agreed that she had deliberately lied about the appellant’s behaviour since returning to Australia.  That was the first occasion she had seen Dr Englhofer.  She was referred to a psychologist by Dr Englhofer but did not mention the choking to the psychologist either.
44. [44]
    In cross-examination, the complainant agreed that she had not told anyone about the choking incident other than JW and CB until June 2020, nor had she raised it with the appellant shortly after.
45. [45]
    On 6 January 2018, the complainant recorded a 1 hour 40 minute conversation with the appellant in which she outlined her unhappiness with him.  The reasons she advanced were the lack of assistance around the house, that she resented the fact that he had not gone back to work to earn money, that he was unattractive because he had let himself go, and that she did not love him anymore.  When the appellant asked what he had done wrong, and said, “[n]othing, really”, she said, “You're not the man I want to be wit (sic)”.^[14]  At no point did she raise the choking incident from about a week earlier, even when the appellant said, “I've never been physically abusive to you”.^[15]  Her explanation for not mentioning it was that it was not safe to bring up the choking and that what she had done was challenge him “very timidly”.^[16]  However in discussing the appellant questioning her about the grocery shopping, she said, “What the fuck?  What if I wanted to spend $200 on shopping?  You don't need to check it...  I said it was groceries.  You should’ve gone, ‘Fine’”.^[17]  She also agreed, however, that she had told him to “[a]ct like an adult… and just accept that this is” and had stood up to him.^[18]  She also conceded she had lied to the appellant in saying that they would share custody of their children fifty-fifty.
46. [46]
    The cross-examination revealed increasing acrimony between the complainant and the appellant after proceedings were commenced in the Family Court.
47. [47]
    When interviewed during the course of Family Court proceedings on 12 February 2019, the complainant did not refer to the choking.  The interviewer noted that the complainant merely “spoke of a couple of incidents where [the appellant] had allegedly become angry with her and they had been engaged in a scuffle and that she got scratched”.^[19]  In an interview with the same person the following year, on 2 June 2020, she again failed to mention the choking.
48. [48]
    In a Notice of Risk filed in the Family Court, signed by the complainant on 22 January 2020, the complainant listed nine instances of alleged family violence, including the events of 24 September 2018, but none of them involved choking.  This was, she said, because it did not involve the children.
49. [49]
    The complainant agreed that she had withheld custody of the children from the appellant on 13 May 2020.  On 15 May 2020, the appellant successfully obtained a domestic violence order against the complainant.  On or about 25 May 2020, he brought proceedings in the Family Court to recover the children from her and for her to have only supervised access.  In response, the complainant swore a further affidavit touching on violent and abusive behaviour which did not refer to the choking.
50. [50]
    The following month, on or about 10 June 2020 she told her case officer from the Brisbane Domestic Violence Service about the choking, and on 25 June 2020, told police about it for the first time.  She accepted that she had not told any medical person, counsellor, lawyer, the police or case worker prior to that time.  However, she could not recall when she told her counsellor from Uniting Care.  She stated the change was due to years of counselling and that she now “felt safe”.^[20]
51. [51]
    In re-examination, the complainant explained that she told her friends and not the doctors about the choking because she knew and trusted the former.
52. [52]
    By June of 2020, the family dispute between the complainant and appellant had become bitter.  She had alleged a large number of breaches of a domestic violence order made in September 2018 by the appellant.^[21]  She agreed she persistently complained to police and wanted him charged.  The police did not, however, charge him.
53. [53]
    Once the appellant was charged with the present offences, the complainant applied for orders that she have 100 per cent care of the children, and that the appellant be limited to two hours of supervised contact per fortnight.
54. [54]
    The complainant was cross-examined at length about the Family Court proceedings and the coincidence in timing about her seeking to change custody arrangements and raising the allegation as to choking.  It was evident from the complainant’s evidence that there was a lot of acrimony involved in the Family Court proceedings, including that she found the shared custody arrangement difficult and that she had sought to change custody arrangements in respect of the children in 2020 contrary to a consent order of March 2020.  In cross-examination, counsel for the appellant put it to the complainant she had only made the allegation of choking to advance her position in the family law proceedings which she rejected.
55. [55]
    In December 2020, the complainant had emailed Dr Englhofer, whom she had consulted on 4 January 2018, enquiring as to whether she had disclosed the choking on that date.  Dr Englhofer replied that she had not.
56. [56]
    The complainant gave a police statement concerning the choking, taken on 28 April 2021, in which she specifically referred to an argument with the appellant on 30 December 2017 about the money spent on groceries, but again said that the choking incident had occurred on 14 January 2018.  She stated in cross-examination that the date of 14 January may have arisen because police had asked her to search her phone.  She had searched her phone for text messages with JW and found a message from 13 January 2018 where a meeting was arranged for the 14^th at Chermside, and another from the 14^th in which she apologised for running late.  She thought the search came up with that message first and not the message arranging a meeting at Chermside on 31 December 2017.  She stated in her statement of 28 April 2021 that the appellant knew she was going out that day and didn’t believe she was going to see JW.
57. [57]
    On 20 March 2023, during a meeting with the prosecutor, the complainant said that the choking incident had occurred on 30 December 2017 based on an entry in her diary.  She said that she had met JW, who saw the bruises, which were not hidden by makeup because they were “too dark”.^[22]  She said that after seeing the bruises, JW suggested that she keep a diary.  She said that later that day she had another argument with the appellant over the grocery shopping.
58. [58]
    The prosecutor asked her about the inconsistency between the date in her statement of 14 January 2018 and the date of 30 December 2017.  She had stated that she started the diary in January 2018 and had backdated some entries.  She said some of the dates were approximate.
59. [59]
    In the conference of 20 March 2024, the complainant was told by the prosecutor that the metadata associated with the photographs of her neck showed that they had been taken on 4 January 2018.  Her response was, “I don't know how to explain that...”.^[23]
60. [60]
    She initially stated that she couldn’t recall if she subsequently spoke to JW about the discrepancy about dates as to when they had met at the café, but later denied that she had.  She stated that she did speak to a detective about the discrepancy between 20 March 2023 and 24 April 2023.  She agreed she emailed the detective, saying:^[24]

“[JW] and I would both like to amend our statements.  We both made the same mistake not realising that we met on a Sunday at the same place probably at the same time two weeks apart...”

61. [61]
    On 13 August 2023, she had emailed, saying “Did you get a chance to speak to DPP about JW and I amending our statements? We are really keen to sort out our oversight...”.^[25]  She agreed that she must have spoken to her about it by that time in terms of amendments for the statements.  She could not recall the details of the conversation.
62. [62]
    When it was put to her, the complainant rejected that she had not raised the choking because it was a lie and it didn’t happen.
63. [63]
    The complainant was also cross-examined about inconsistencies between her evidence as to the incidents that occurred on 24 September 2018 and what she told police on that date when police attended her house.
64. [64]
    When police came to the house on 24 September 2018, the complainant gave an account that suggested that the appellant had attended by arrangement.  She said, “[The appellant] came to the house to take stuff from the house … I said that's fine.  You take whatever you want”.^[26]  She said that he had “knocked” at the door, that she had answered it and he had just walked in.  She made no mention of the children letting him into the house or of the removal by him of any pictures or damage to the walls.
65. [65]
    After the incident where the appellant was taking pictures off the wall, the appellant’s evidence was that he took her phone and ran upstairs with it to the bathroom and she had followed him.  The complainant agreed in cross-examination that had told the prosecutor in conference that she had “thrown [herself] in the door frame and he had got the door frame into my back”.^[27]  In cross-examination she said that was incorrect and she meant the door was hitting her back.  In cross-examination, she was asked, “he was just trying to get into the bathroom, and you launched yourself, throwing the left-hand side of your body at the door, correct?”.  She replied, “No. My right-hand side”.^[28]  A little later she agreed that “[a]fter a while”, once the appellant realised she was caught in the door, he stopped pushing on the door.^[29]
66. [66]
    The complainant also said to the police that she did not know how she fell to the floor and that she had tripped on her way to the rumpus room.  When asked, “Did you just lose balance or did he knock you to make you fall?”, the complainant answered, “I don't know”.^[30]  She also agreed she said to the police the appellant had “handed [her] phone back to [her]”, not thrown it at her.^[31]  That was relevant to count 3 where she failed to give evidence that she had been pushed and a not guilty verdict was directed to be entered.
67. [67]
    The complainant made a number of concessions in cross-examination and generally did not dispute the conflicting statements she made particularly to the police on 24 September.  Part of the explanation for the inconsistent versions was said by the complainant to be that she was scared and in shock when the police came.
68. [68]
    There was no dispute that the appellant had gone to the house on the night of 24 September 2018, that a phone call had been made to JD and an incident had occurred when the appellant took the complainant’s phone and ran to the toilet when she threw her body at the door.

Other Witnesses called by the Crown

69. [69]
    JW gave evidence that she had met with the complainant on 31 December 2017 at Chermside.  She noticed that she had red and puffy eyes and bruise marks on her neck that she had attempted to cover.  There were “at least four bruises more on one side of her neck than the other”.^[32]  She stated that the complainant was physically shaking.
70. [70]
    In cross-examination, JW said that the bruises were in the shape of finger marks and on both side of the neck.  She agreed she had no forensic expertise but said she had seen bruises in the shape of finger marks before.  She said they were somewhat elongated.  She couldn’t recall other details as to the length or colour of the marks.
71. [71]
    JW rejected a suggestion that the complainant had written her statement for her and stated she did it herself.  She also rejected a suggestion that she and the complainant had colluded over their respective statements.  She stated that they had both independently made the same error about 14 January.  She said she had looked at her diary and old text messages.  She stated she had a discussion with the complainant about concerns about the metadata on the photographs, which prompted her to go back and check the dates.  She said the complainant did not tell her what the photographs were or the date.  She stated she was certain the meeting was on 31 December 2017 after she had gone back and found earlier text messages.  She nominated the date of 14 January 2018  at first because of a diary entry.  She stated that she did not know the date the complainant had said their meeting took place.
72. [72]
    CB gave evidence that she had met up with the complainant when she returned from her holiday in New Zealand.  She noticed bruises when they met up which were “[y]ellowish brownish”.^[33]  She recalled there was more than one bruise.  She confirmed that she took photographs of the bruises to the complainant's neck which were exhibits 1 and 2.
73. [73]
    In cross-examination, CB stated that she had saved the photographs on her computer and sent them to the complainant when she was giving a police statement in June 2021.  She did not recall the date in January when she took the photos.  She recalled a discussion about dates with the complainant but couldn’t recall any details.  She said that the complainant told her that she had got the bruises when the appellant “put his hands around her neck”.^[34]  When asked whether the complainant had said when this had occurred, she said, “I don't recall her saying an exact date... just that it was on the trip”.^[35]
74. [74]
    DB, the complainant’s new partner, gave evidence that he had stayed at the complainant's place on the night of 22 September 2018 and parked his motorbike in the garage.  At about 7.00 am on 23 September 2018 he heard a bang on the door and heard a male voice calling for the complainant to come out and to “get out here”.^[36]
75. [75]
    JD gave evidence that she missed a phone call from the complainant on 24 September 2018 and then she rang back.  When she rang back, someone picked up the phone, she heard scuffling and a male voice say her name.
76. [76]
    In cross-examination, JD said she went to the house later that night with her husband.  No evidence was led of what she had seen on that visit or that she had seen damage to the wall.
77. [77]
    Dr Bishop was the complainant's general practitioner in September 2018.  She examined the complainant on 26 September 2018 and noted bruising laterally to her left thigh and shoulder and also an abrasion on the lateral side of her left ankle.  In cross-examination she clarified that the injuries were on the outside of the thigh and shoulder on the left-hand side.  The complainant told her that she suffered those injuries when jammed against a door jamb.  She could not recall the complainant saying that she had been thrown to the floor.
78. [78]
    Lastly, the prosecution called Dr Mitchell Shaw, a forensic physician.  He was shown exhibits 1 and 2.  He observed that exhibit 1 was not well focussed, but within those limitations, he stated the markings could be the result of bruising.  He could not, however, say that fully and unequivocally because he couldn’t say whether there was not some other colouration of the skin by something external.  He stated that if the marks were indeed bruises, then they could have been caused by fingertips – either the persons own or someone else’s – or by something the same shape.
79. [79]
    In relation to exhibit 2 he could say that it was better in terms of focus and there was shadowing and redness in what he described as the triangle of the neck but he couldn’t reliably say it was bruising, because there was more redness than bruising.
80. [80]
    Dr Shaw was cross-examined.  He agreed that studies suggested that yellow colouring in a bruise (as seen in one photograph) suggests that it is at least 18 hours old.  He stated he would be more certain if there had been a timely examination.  He agreed that a photograph was an imperfect representation of an injury.  Dr Shaw said that where there was said to have been choking, if a medical examinations was carried out after the event doctors would look at other features such as looking for petechiae and tenderness around the throat.  In cross-examination, he accepted that the most that could be said was that the marks on the neck might be bruises and that they occurred at least 18 hours before.  Given the description he appears to be talking about exhibit 1.
81. [81]
    A number of facts were admitted in relation to the conversation between the complainant and the police officer who attended on 24 September 2018, which were exhibit 3.  Although police came to the house on that evening, no evidence was called from any officer nor any admissions made about damage to the wall of the house.  The admissions reflect the conversation above in relation to the appellant’s entry into the house and wanting to take some things.

Legal Principles

82. [82]
    The test to be applied in determining whether a verdict is unreasonable was authoritatively established by M v The Queen.^[37]  In that decision, the High Court formulated the test for whether a verdict was unreasonable based on the whole of the evidence presented at trial in the following terms:^[38]

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations.” (footnotes omitted).

83. [83]
    In applying the above test, the Court must have due regard to the advantage of the jury in hearing and seeing witnesses.  In that respect, the majority in M stated that:^[39]

“…In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.  That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.  In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.” (footnotes omitted).

84. [84]
    The language “unsafe or unsatisfactory” is one of the terms that was commonly used by Australian Courts in the past, drawn from English law, rather than the language of the statute, which is now favoured.
85. [85]
    In M, the majority also recognised that a verdict “which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring verdicts to be set aside”.^[40]  One of the common bases upon which it may be contended that a verdict may be found to be unreasonable is that the jury delivers inconsistent verdicts which are an affront to logical and reasonableness.
86. [86]
    In MacKenzie v The Queen, the majority of the High Court considered that appellate intervention may be required where inconsistent verdicts cannot logical stand together and a guilty verdict is unsafe or unsatisfactory.^[41]
87. [87]
    The majority in MacKenzie discussed the tension in relation to an appeal which asserts the jury has delivered inconsistent verdicts between the institution of the jury as the “constitutional’ tribunal to resolve disputed factual questions”^[42] and the inscrutability of the jury and circumstances which cast doubt upon the verdict in question such  that “logically it cannot stand together with another verdict” which then confronts the Court with a problem of justice and how that tension is to be resolved by the Court to prevent injustice.^[43]  Those principles outlined have been applied in subsequent decisions including MFA discussed below.^[44]
88. [88]
    The majority in MacKenzie stated that ordinarily the test is one of logic and reasonableness.^[45]  In determining whether there is an inconsistency, the majority referred approvingly to the judgment of Devlin J in R v Stone who stated that the appellant:^[46]

“… must satisfy the court that the two verdicts cannot stand together, meaning that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.”

89. [89]
    The mere fact that different verdicts are delivered where a defendant is charged with multiple counts does not mean that they are inconsistent in the relevant legal sense.
90. [90]
    The onus lies upon the appellant to establish the inconsistency of verdicts by demonstrating that the different verdicts returned  are “an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty” or “may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law”.^[47]
91. [91]
    A verdict may be technically or legally inconsistent, that is not the case here.  Alternatively it may be factually inconsistent.  It is not the role of the appellate court to substitute its own opinion of the facts for one which was open to the jury if there is evidence to support a verdict.^[48]
92. [92]
    A number of matters relevant to the function and accepted role of a jury may lead the Court to consider that verdicts can be reconciled and are not inconsistent in the relevant sense.  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”.^[49]
93. [93]
    The Court may take the view that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution on each count and that the prosecution bears the onus of proof.  Verdicts will not always be expected to be strictly logical.  The court may consider for instance that the jury took a merciful view of the facts upon one count which is “a function which has always been open to, and often exercised by, juries”.^[50]  In this instance, the courts acknowledge that juries don’t always act in accordance with strict logic and strict principles of law.^[51]
94. [94]
    If, however, the verdicts cannot be reconciled and “the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside.”^[52]  (footnotes omitted).
95. [95]
    In the present appeal, the appellant particularly relies on the majority in MFA and their statement that:^[53]

“Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case.  Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system.  A number of features of that context were emphasised in MacKenzie.  They include the following.  First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count.  This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part.  Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution.  In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence.  In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant.  This may not be unreasonable.  It does not necessarily involve a rejection of the complainant's evidence.  A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt.  The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution.  A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant.  It may simply reflect a cautious approach to the discharge of a heavy responsibility.  In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.  Thirdly, there is the consideration stated by King CJ in R v Kirkman, and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only.  And there may be an interaction between this consideration and the two matters earlier discussed.”

96. [96]
    In MFA, the majority found that there was an obvious explanation for the differences in verdict.  Given that the evidence of the complainant had some support from another witness as to sexual activity, notwithstanding there were differences, and taking into account the possibility of confusion on the part of the witness and his age in relation to the counts where the jury found the appellant was guilty in contrast to the charges where they found the appellant was not guilty.  It was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt notwithstanding the verdicts of not guilty on other counts.^[54]
97. [97]
    The majority also found that notwithstanding inconsistencies between the complainant’s evidence and the witness, the differences on one count could have reasonably been regarded as trivial and in relation to the other count the witness gave some support to sexual activity having occurred notwithstanding he did not corroborate the particular act that was the subject of the charge.  They considered the evidence of the complainant cogent, unequivocal and not inherently implausible.^[55]
98. [98]
    It is unnecessary to discuss other authorities referred to by the parties further to resolve the present appeal.

Contentions

99. [99]
    The appellant contends that the guilty verdict on count 1 cannot be logically reconciled with the not guilty verdicts in relation to the counts 2 and 4 which they submit must have been the result of the jury considering the complainant’s evidence to be unreliable or false and must have involved a wholesale rejection of the complainant’s account.  The appellant contends that the acquittals cannot otherwise be explained and occurred because of the inconsistencies in the complainant’s evidence particularly given it was at odds with the account she gave to police on the day of the offences namely 24 September 2018.  It submits that given that there was medical evidence corroborating count 4 demonstrates that count 1 cannot be rationally sustained on the basis of the evidence of alleged bruising of the complainant’s neck which was unsatisfactory.  It also contends that there is no evidence of insight into the jury’s thinking and asserts that a question asked of the jury which pertained to count 5 upon which the jury could not reach a verdict offered no insight into the jury’s thinking as to their process of reasoning.
100. [100]
     The appellant in paragraph 11 of his supplementary outline contends that the “factors underlying the acquittals fell to be considered in conjunction with the matters articulated in the appellant’s primary outline at paragraphs 29 and 30.” The appellant contends that those matters cumulatively amount to “inconsistencies, discrepancies, or other inadequacies” and “other evidence” that mean that a jury, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt.”^[56]
101. [101]
     The Crown however contend that this is not a case of inconsistent verdicts and that the difference in the verdicts can be explained on the basis of the nature of the different offences and the different times at which the choking event took place as opposed to the events which are the subject of counts 2 and 4, and the evidence given in relation to the different offences.  It submits reasonable doubt in relation to counts 2 and 4 could have reasonably been explained by matters other than a wholesale rejection of the evidence of the complainant as being unreliable or lacking credibility in rejecting and returning the not guilty verdict for those counts.  It contends that there is an evidentiary basis for reaching the different verdicts and a reasonable and rational basis for the different verdicts.
102. [102]
     The Crown, while acknowledging there were several inconsistencies regarding the date of the offending for count 1 and the complainant’s failure to complain about the offending on previous occasions, contends that the substance of the account was supported by other evidence.

Was the Verdict Unreasonable?

103. [103]
     Applying the principles in MacKenzie and MFA, I consider that the differing verdicts in relation to the choking charge, the subject of count 1 and the wilful damage and assault charges, the subject of counts 2 and 4 and can be accounted for in a logical and reasonable way.  The failure of the jury to reach a verdict on count 5 is not relevant to the analysis, as it is not tantamount to an acquittal.^[57]
104. [104]
     The returning of the guilty verdict on count 1 is logical and consistent with the fact that the jury separately considered each count and that there was some independent evidence supporting the complainant’s version of events.
105. [105]
     Both JW and CB gave evidence that they had observed marks on the complainant’s neck which was capable of being accepted by the jury as consistent with the complainant’s evidence that the bruising that had occurred as a result of the appellant choking her by placing his hands around her neck.  CB confirmed she had taken the photos of the complainant’s neck in January 2018.
106. [106]
     While the complainant and JW had given differing events as to the date on which the event had occurred, they provided a tenable explanation for the change in dates and the timing of the photographs taken by CB gave support to the date of 31 December 2017.  The complainant’s statement of what had occurred on the night in question was however otherwise consistent.  That is in contrast to counts 2 and 4 where the complainant had given inconsistent and confused evidence as to what in fact occurred.
107. [107]
     There were photographs taken on 4 January 2018 which could have been accepted by the jury as showing bruising on the complainant’s neck consistent with her having been choked manually and that therefore there was objective evidence which supported the complainant’s case in relation to the choking.  Evidence was called from Dr Shaw who, although he set out the limitations of making observations based on photographs rather than an examination of the patient, said that the marks could be bruises from fingers on the neck and that they had been inflicted at least 18 hours before.
108. [108]
     In relation to count 2, the jury had to be satisfied that the damage was wilful.  There was no corroborating evidence of the complainant in terms of what occurred.  Her statements to police, did not suggest that the pictures had been removed by the appellant without her consent causing damage.  Despite the police having attended at the residence after the incident on 24 September 2016, there was no corroborating evidence from them that they had seen any damage, nor from JD who had gone to the house that same evening after receiving a telephone call during the altercation between the appellant and complainant.  There was no other evidence supporting the complainant’s version of events in this respect.  A jury applying themselves diligently to the evidence in finding the appellant not guilty did not necessarily entail a complete rejection of the complainant’s evidence.  The jury could reasonably have concluded they wouldn’t rely upon her evidence if it was not supported by independent evidence, given the inconsistent versions given by the complainant in her evidence as to what occurred as opposed to the police.
109. [109]
     In relation to count 4, the basis of the charge was somewhat unusual insofar as  the element of causing bodily injury while armed was said to involve the appellant using the toilet door to come into contact with the complainant and cause bodily injury.  In order to establish count 4 the jury had to be satisfied not only that the complainant had suffered bodily injury caused by the appellant pushing the door into her but that appellant had brought the door into contact with her and had deliberately done so.  The jury may not have been satisfied of the deliberate nature of the act or the appellant’s intent, which depended on matters of inference as to the appellant’s state of mind.  While the complainant gave evidence that she had suffered injuries on her left side of her body and evidence as to those injuries was given by Dr Bishop, there was evidence that the injuries  suffered may have been caused by her throwing herself into the door jamb with her back facing the door, rather than the result of the appellant pushing the door into her.  In that regard she had told the prosecutor a different version than her evidence in Court, albeit that she stated she had made an error.  The medical evidence was therefore corroborative of injuries being suffered but not necessarily them being suffered by the appellant bringing the door in contact with her.  That is in contrast to the photographs supporting count 1 which were capable of being accepted as evidence of bruising caused by manual choking.
110. [110]
     There was some evidence indicating that the jury was focussed on the question of intention of the appellant.  A note provided to the Court, MFI E, although it was ambiguous as to whether it related to count 4 or 5.^[58]  Contrary to the suggestion of the appellant, the trial judge and counsel did not consider that is was clear that the note pertained to count 5 as opposed to count 4, a matter agreed by the appellant’s Counsel.^[59]  There was reference to both counts 4 and 5 but the heading was crossed out and the question was “with regard to the assault, is intention to harm a deciding factor”.^[60]  Both counts involved an assault.  Given the ambiguity of the note, the trial judge provided a response on the basis of both counts 4 and 5 with the agreement of Counsel, which included reminding them that for count 4:^[61]

“You will recall that in respect of count 4, charge of assault occasioning bodily harm whilst armed with the offensive instrument, the door, that I told you that if you look at the elements sheet that I gave you, the first element, in the circumstances of this trial, I directed you that the element will only be proven if you are satisfied the defendant deliberately brought the door into contact with the complainant and did so intending to cause injury to her.

So it is both those things, deliberately bringing the door into contact and, at that time he is doing that, intending to cause the complainant injury.  That is one of the two elements for count 4 that are in issue in this trial.  The other is the fourth element, that the defendant thereby did the complainant bodily harm – in other words, that the complainant, by deliberately bringing the door into contact with her, intending to cause her harm, did her bodily harm…”

111. [111]
     The acquittal of count 4 did not implicitly involve the jury completely rejecting the complainant’s evidence, but rather could be explained on the basis that they were not satisfied beyond reasonable doubt that the appellant had the relevant intention.  In that regard the complainant agreed the appellant stopped trying to shut the door when she said it was hurting her.
112. [112]
     It was not contested at trial that some incident had occurred when the appellant had taken the complainant’s phone and run to the toilet and she had followed him and she had tried to stop him shutting the door by throwing herself in the door frame and was stuck between the door and door frame.  The evidence of the complainant was she had thrown herself into the door frame with her right side the door was pushed against her back.  The defence raised the possibility that her injuries were not caused by contact with the door itself, as opposed to the door frame.
113. [113]
     In those circumstances the jury could reasonably have formed a reasonable doubt without a complete rejection of the complainant’s evidence.  That is particularly so in  circumstances where the complainant had run after the appellant to get her phone and events, on any view, occurred quickly.
114. [114]
     This may also be a case where the jury showed some mercy given at the time of the events in September 2018, the complainant had started a new relationship which had just been discovered by the appellant.  The incident in count 4 where there was evidence of an altercation between the appellant and the complainant was markedly different from count 1 where the complainant’s evidence was that she was asleep and the appellant contended that no incident had occurred at all.
115. [115]
     There is no factual overlap between the incident on 31 December 2017 the subject of count 1 and the events of 24 September 2018, the subject of counts 2 and 4.  While count 4 did involve an assault it was of a much less serious nature than the charge of choking.  Even if the jury considered the complainant’s evidence on counts 2 and 4 was exaggerated, in some respects false or unreliable that did not mean inexorably that the jury had to reject the evidence of the complainant in relation to count 1.
116. [116]
     The inconsistencies, inadequacies and discrepancies in the evidence given by the complainant in count 1 identified by the appellant when cumulatively considered with the acquittals are matters where the jury could rationally not have entertained a reasonable doubt.  Nor do I consider that the verdict of guilty on count 1 was not open to the jury on all of the evidence as a whole.  As set out above that requires an independent assessment by the Court of the evidence as a whole to determine whether or not it was open for the jury to be satisfied of the appellant’s guilt beyond a reasonable doubt.
117. [117]
     In addition to the matters underlying the acquittals of the appellant, the matters of inconsistency, discrepancy or inadequacy to which the appellant directs the court are:

     1. The inconsistencies as to the dates on which the choking incident occurred;
     2. The “cheery tone” of the message she sent on 31 December to JW;
     3. The failure to tell Dr Englhofer about the choking incident and saying he had calmed down since they had returned from New Zealand, particularly where photos were taken by CB on the same day;
     4. The fact she had told CB the incident occurred in New Zealand;
     5. Her failure to put the incident to the appellant in the recorded conversation of 6 January;
     6. Her failure to complain of the incident in the Family Court proceedings and the fact that the complaint was not made until the appellant had got a protection order against her and sought sole custody of the children.
118. [118]
     The appellant also submits absence of a medical examination at the time the photographs were taken was significant, particularly, given the limitations on the opinion that could be given by the medical practitioner called to comment on what he observed in the photographs.
119. [119]
     The evidence of the complainant was inconsistent in terms of the dates on which the event occurred, 14 January having been originally nominated 30 December and her asserting that the choking occurred on 31 December 2017.  She did, however, give some explanation for the discrepancy in her evidence particularly by reference to text messages and her diary having been started in January 2018 and the 30 December 2017 being the approximate date on which she considered the events had occurred.  Similarly JW was able to identify that she had originally nominated 14 January based on a diary entry supported by text messages but when she went back after being told there were discrepancies in dates, as a result of dates on photographs she had found the text messages showing that she and the complainant met on 31 December 2017.  A jury could despite the change in dates by both the complainant and JW have accepted the explanation for the mistake given there were text messages supporting both dates and coincidentally involved them meeting at Chermside.  Further, there was uncontradicted evidence  that the photos taken of the complainant’s neck were taken by CB on the 4^th January.  According to the medical evidence those photos were of bruising that was at least 18 hours old.  That corresponds to the fact that the event took place some time prior to 3 January, which gave some support to the evidence of the complainant and JW that JW saw the marks on the complainant’s neck when they met on 31 December 2017.
120. [120]
     The inconsistency as to dates was a matter which was explained by the complainant and JW in their evidence.  JW’s evidence as to what said she observed was consistent with the photographs taken on 4 January 2018.  The discrepancy in the dates and CB’s evidence as to where she was told the incident occurred were not in the context of the evidence significant, when evidence was given some years after.  The discrepancies as to dates and even what CB said she was told about where the incident occurred are matters of detail which could be easily confused over the passing of time, and reasonably accepted by the jury as a reasonable explanation.
121. [121]
     The “cheery tone” of a text message sent on the morning of the incident to JW as opposed to one which had a sense of alarm or urgency is explicable on the basis it is reasonable that many people would not wish to record in a text message that they were troubled, particularly where she was arranging to meet up with JW in person.  It is not a matter which could reasonably have been considered significant in the context of what occurred.
122. [122]
     The fact that the complainant did not inform Dr Englhofer about the choking incident and in fact told her she was not fearful of him, and made inquiries of her on December 2020 as to whether she did tell her is explicable given she had not attended Dr Englhofer before.  She did, however, disclose what had occurred to JW and CB which the jury could reasonably have accepted to be explicable on the basis it was a matter which she only felt comfortable disclosing to close friends, as the complainant explained, whereas, it was the first time she had seen the doctor.  She frankly conceded that she lied to Dr Englhofer about the appellant calming down.  Her evidence that she had covered up the bruising with makeup when she saw the doctor brought into question her failure to recall the date of the incident on 31 December 2018.  The evidence as to recalling covering up the bruising could have been regarded by the jury as a matter of reconstruction post the event rather than a deliberate lie, given Dr Englhofer told her it had not been disclosed to her by the complainant.  More significantly, the fact she contacted Dr Englhofer in December 2020 to ask her whether she had disclosed the choking to her would be inexplicable if she in fact she knew she had made the choking incident up and it had never occurred at all.
123. [123]
     The complainant did not confront the appellant about the incident in the 6 January 2018 conversation which was recorded, that discussion was centred on why the complainant considered their marriage had finished.  Notwithstanding its proximity in time that was reasonably explicable on a basis other than the event did not occur.  She had already told the appellant the marriage was ended prior to the incident in question.  In that respect it was not relevant to the breakdown and is a reasonable explanation as to why she did not respond to the appellant’s comment that he had not been physically abusive to her.  Notwithstanding her forthright comments to him, her evidence that she was fearful of bringing up the choking incident could be accepted as not unreasonable, even though her description of being timid in the conversation was an exaggeration.
124. [124]
     While there was delay in making a complaint about the choking incident when she had made other complaints about the appellant being violent the delay in the course of Family Court proceedings, there was corroborating evidence supporting the fact that the incident occurred on 31 December 2017.  This includes the photographs taken on 4 January 2018 and what had been observed by JW and CB in close proximity to the time is something that needs to be considered together with the other inconsistencies in the complainant’s evidence.
125. [125]
     The complainant also provided some explanation for her delay in making a complaint.  A complaint of choking is a far more serious and threatening incident than the other incidents about which she complained.  It may well be she held back making a complaint about it but was prompted to do so in response to the appellant’s actions in obtaining a temporary protection order and seeking custody.  That does not however demonstrate it didn’t occur at all, particularly given the supporting evidence.  She may well have sought to bury the event and found it difficult to confront but counselling and the Family Court proceedings may have been catalyst to confirm it.
126. [126]
     The factors underlying the acquittals together with the inconsistencies, inadequacies and discrepancies in the complainant’s evidence for count 1 do not establish that the verdict was unreasonable.  There was evidence supporting the verdict of guilty and the inconsistencies, discrepancies and inadequacies in the complainant’s evidence, are not of a nature that a jury acting rationally would have had reasonable doubt on the evidence as a whole.
127. [127]
     The jury had benefit of seeing and hearing the complainant who was the subject of skilled and intense cross-examination in assessing the explanation and whether they could exclude the former.  In that regard the jury were given a number of warnings about assessing the complainant’s evidence by the trial judge.  Those warnings included the trial judge highlighting to the jury that it should consider the discrepancies and potential inconsistencies and not disclosing the incident in Family Court proceedings or to a medical practitioner until June 2020 in determining whether they accepted the complainant’s evidence, JW’s evidence and the explanations given.  They were also warned that they had to accept the complainant’s evidence of what occurred in relation to the choking beyond reasonable doubt as she was the only person who could give evidence of that.  The jury were also instructed to consider whether or not the complainant had a motive to lie in order to influence the conduct of the Family Court proceedings.  In relation to discrepancies and inconsistencies in the complainant’s evidence on the other counts, the jury were instructed to consider whether those matters affected the credibility and reliability of the complainant’s evidence and whether reasonable doubt on part of the complainant’s evidence affected the way they assessed all of her evidence and caused them to have doubts about accepting her evidence on other counts.
128. [128]
     Having assessed all the evidence given at trial, I am not persuaded that it was not open to the jury on the whole of the evidence to be satisfied of the appellant’s guilt on count 1 or upon the whole of the facts and circumstances of the case,^[62] including the jury’s acquittals of the appellant on counts 2 and 4.
129. [129]
     In my view the appeal must fail when the evidence and the verdicts are considered in accordance with the principles in MacKenzie, M and MFA.

Proposed Order

130. [130]
     I would order that the appeal be dismissed.
131. [131]
     KELLY J:  I agree with the order proposed by Brown JA, and with her Honour’s reasons.  I also agree with the reasons of Dalton JA.