R v KBB[2022] QDCPR 29

DISTRICT COURT OF QUEENSLAND

1. [1]
   The defendant/applicant is charged on indictment with three counts:  strangulation in a domestic setting, suffocation in a domestic setting and assault occasioning bodily harm.  The events that led to the charges commenced in the evening of 23 July 2020 and culminated in the alleged offences occurring on 24 July 2020. 
2. [2]
   The application is to exclude evidence of the history of the domestic relationship.
3. [3]
   The complainant and defendant had been in a relationship for nine months.  She was 16 weeks pregnant with his child.  The evidence includes two statements by the complainant, several police officers’ statements, evidence of the complainant’s injuries and the statement of one D. 
4. [4]
   For the purposes of the application, the respondent accepted the summary contained in the applicant’s written outline which I incorporate into these reasons: 

   1. (a)
      She alleges that on 23 July 2020, the defendant and D (a friend of the defendant’s) were drinking and consuming cocaine at their residence. The complainant was upset by this. At some point D left. The complainant drove the defendant to Northlakes so that he could drop something off to a friend. As she was driving, the defendant accessed the complainant’s phone and perused its contents. The complainant objected to this and stopped the car to retrieve her phone. They wrestled and the complainant scratched the defendant’s face with her ring. The defendant returned her phone to her, and they continued driving.
   2. (b)
      Upon returning home, it is alleged that the defendant was upset about the injury to his face. The complainant discussed ending their relationship. An argument developed before the complainant went to bed. The defendant went into the bedroom and asked for his car keys and the complainant refused to provide them to him as he was intoxicated.
   3. (c)
      At about 2.00am, the defendant woke the complainant. He spat in her direction and asked to see her phone. They argued briefly before the defendant left the bedroom.
   4. (d)
      At about 5.15am, the defendant returned to the bedroom and began consuming cocaine. The complainant objected to this, and the defendant requested her phone again.  She provided it to him and left the room to go to sleep in the loungeroom. The defendant asked for the complainant to return to the bedroom, and they argued about the contents of her phone.  Eventually the complainant took possession of her phone and went into the loungeroom. The defendant followed and they continued to argue. The complainant raised the prospect of ending their relationship.
   5. (e)
      The defendant is alleged to have moved towards the complainant. She slapped him in the face. In response, the defendant grabbed the complainant by the throat and the hair. She could not breathe and felt like she was choking (count 1). He threw her onto the bed.
   6. (f)
      The defendant struck the complainant several blows to the side of her torso, causing her to feel winded. She tried to slide down the side of the bed and the defendant is alleged to have gripped her by the shoulder and covered her mouth and nose with his other hand (count 2).
   7. (g)
      After this altercation ended, the complainant began packing her belongings to leave. The defendant followed her. At some point, while they were walking in the hallway, the defendant grabbed her around the throat and threw the contents of a glass into her face before striking her to the head with that glass (count 3). The complainant describes falling unconscious and awakening on the floor.
   8. (h)
      After regaining consciousness, she threw some of the defendant’s belongings into the yard. As he went to retrieve the items, she locked him outside and called her mother for assistance and eventually left.
   9. (i)
      She is said to have suffered injuries from the various assaults. These included bruising and scratches to her neck, lip, face, chest and back along with an abrasion to the top of her head.
5. [5]
   I take the summary of the challenged evidence from the respondent’s outline which I incorporate into these reasons:

   1. (a)
      On 1 January 2020.  The Applicant became jealous and demanded to inspect the complainant’s mobile phone.  When she refused he assaulted her.  Shortly after he strangled her;
   2. (b)
      January 2020.  The Applicant was jealous of the complainant and demanded to see her phone which she handed over.  He accused her of deleting “everything” and then smashed the phone and threw a dinner plate at her.  He did not strangle or choke the complainant on this occasion.
   3. (c)
      February 2020.  The Applicant called the complainant a “slut” and smashed her phone.  They returned to his place where he showed her a video of the Applicant and another girl.  He then strangled her and then choked her;
   4. (d)
      April 2020.  The Applicant accused the complainant of being pregnant to someone other than the Applicant.  He assaulted her and strangled her.
6. [6]
   The Prosecution submits the evidence is admissible under section 132B of the Evidence Act 1978 (Qld) and as evidence of propensity or similar conduct.
7. [7]
   As to the first, the submission is that the evidence is admissible because it is relevant evidence of the history of the domestic relationship.  Referring to the High Court’s decision in Roach v R [2011] 242 CLR 610 and the decision of the Court of Appeal in R v Toweel [2019] QCA 303 (I notice that in both of these case the relevance of the relationship evidence was not in issue), the Prosecution submits the evidence is relevant because it explains the context in which the alleged offending occurred so the complainant would not be disadvantaged by her account appearing “out of the blue”.  The Prosecution submits the evidence of a volatile relationship with acts of violence by the defendant towards the complainant is relevant under section 132B. 
8. [8]
   I tend to accept the applicant’s submission that this is not a case where a jury would wonder why the allegations arise out of the blue.  If the complainant is accepted as a witness of credit, there are clear and obvious motivations at play on the part of the defendant, such that the conduct could not be properly described as inexplicable or fanciful.  The evidence is not necessary, for example, to explain a delayed complaint.  The complainant’s account is that she complained without delay.
9. [9]
   Even without the relationship evidence the jury might sense that this had not been a harmonious affair.  The details of the relationship beyond the events of 23 and 24 July are not necessary for reasonable comprehension of the complainant’s account. 
10. [10]
    Looked at another way, it seems to me that the evidence of the prior acts of violence by the applicant against the complainant does not assist in the evaluation of the evidence more directly relevant to the charges unless it is to prove that the applicant had a propensity to jealous or controlling violence against the complainant.  As I have said, the Crown also relies on the material as evidence of propensity or strikingly similar conduct. 
11. [11]
    The applicant submits the challenged evidence lacks the necessary cogency to amount to proof of a relevant propensity or strikingly similar conduct.  It is tempting in this case to leave the question whether the evidence of previous disputes and violence to property and person is admissible as propensity evidence to the trial, on the basis that this will likely depend on the conduct of the trial by the defendant – that is, it will depend on the issues raised by the defence.  Of course, by the plea of not guilty all essential facts will be in issue.  In particular, Counsel for the applicant informed the Court during the hearing of the application that:

The acts themselves which give rise to the counts will be challenged.

and that Counsel intended to cross-examine the complainant:

…in a way which challenges those foundational aspects of the evidence about these acts themselves.

12. [12]
    The Prosecution must prove the applicant committed the acts relevant to each charge:  grabbing the complainant by the throat, striking her side and thereby winding her (count 1), covering her mouth and nose with his hand (count 2), grabbing her by the throat, throwing contents of a glass at her and then striking her on the head with the glass causing unconsciousness (count 3). 
13. [13]
    In my opinion, the challenged evidence demonstrates a relevant propensity to violence in the domestic relationship, including by choking and/or suffocating, associated with controlling behaviour, such as demands to see the complainant’s phone, and on two of the four relevant occasions damaging the phone. 
14. [14]
    Taken with the other evidence, particularly the complainant’s account of the events leading to the charges and the evidence of her injuries, there is no reasonable view of the challenged evidence other than as supporting the conclusion that the applicant committed the acts constituting the offences charged.  It follows that the evidence is admissible.  The application to exclude is refused.