Craig Hanlon v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0041

CRAIG HANLON	Applicant
v
THE QUEEN	Respondent

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JUDGES:	TATE AND KYROU JJA AND BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 October 2017
DATE OF JUDGMENT:	28 March 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 81
JUDGMENT APPEALED FROM:	[2016] VCC 1970 (Judge Hogan)

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CRIMINAL LAW – Appeal – Conviction – One charge of aggravated burglary and one charge of common law assault – Conviction following trial by jury – Total effective sentence of three years and six months’ imprisonment – Non-parole period of two years – Whether judge erred in direction to the jury about ‘beyond reasonable doubt’ – Whether jury verdicts unsafe and unsatisfactory – Dookheea v The Queen [2016] VSCA 67, R v Dookheea (2017) 347 ALR 529, Green v The Queen (1971) 126 CLR 28, discussed – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Dann QC with Mr H Venice	Ms M Walker, Criminal Law Solicitors
For the Respondent	Mr B Kissane QC	Mr J Cain, Solicitor for Public Prosecutions

TATE JA:

Introduction

The applicant, Craig Hanlon, was tried by jury in the County Court of Victoria between 10 and 21 October 2016 on an indictment containing 10 charges.

On 21 October 2016, Hanlon was found not guilty of charges 1, 2, 3, 4, 5, 7, 8 and 10 on the indictment. He was found guilty by a jury of one charge of aggravated burglary (charge 6) and one charge of common law assault (charge 9).

Hanlon was sentenced on 13 December 2016 as follows:

Charge Offence Maximum penalty Sentence Cumulation

6 Aggravated burglary 25 years’ imprisonment 3 years’ imprisonment Base

9 Common law assault 5 years’ imprisonment 12 months’ imprisonment 6 months

Total effective sentence 3 years and 6 months’ imprisonment

Non-parole period 2 years

Pre-sentence detention 166 days

Hanlon now applies for leave to appeal his convictions on charges 6 and 9.

Complainant’s evidence of circumstances of offending

The charges on the indictment related to offending that was alleged to have occurred during the course of two incidents. Charges 1–5 related to an incident on 17 January 2015 (‘the first incident’). Charges 6–10 related to an incident on 29 January 2015 (‘the second incident’).

The complainant is Hanlon’s former wife. She alleged that on the day of the first incident the applicant arrived at her unit in Reservoir, dragged her into the garage and attacked her with a spanner. He was found not guilty of all charges related to the first incident.

The second incident involved Hanlon forcing entry into the complainant’s unit at approximately 12:30 pm, after arriving at other times over the days before, and demanding entry. The complainant’s evidence was that Hanlon arrived at her door, very angry, and was yelling ‘Open the fucking door, I'm gunna get in, when I get in I'm gunna bash the fuck out of you.’ This occurred over several minutes. It went quiet. She thought he’d left. Suddenly Hanlon came smashing through the front door and parts of the door flew everywhere. The door frame and the door handle were broken. He was crying.[1] This was the offending the subject of the charge of aggravated burglary (charge 6) of which the applicant was found guilty.
[1]See [64] below.

According to the complainant, once inside, Hanlon grabbed her and slapped her across the face. He put both of his hands around her neck and lifted her off the floor. She grabbed onto his arms to try to relieve the pressure as it was very painful. Hanlon took her into the bedroom, still holding her off the ground by her throat. The complainant tried to grab hold of the walls with her feet. This was the conduct that constituted the alternative charges of intentionally causing injury (charge 7), recklessly causing injury (charge 8) and common assault (charge 9). The jury found Hanlon guilty of common assault.

The Crown alleged that Hanlon then threw the complainant on the bed and climbed on top of her pinning her down. He put his hand over the complainant’s nose and mouth and started to suffocate her. The complainant’s evidence was that he released his hand and said, ‘You're gunna fuckin' speak, aren't you? You're gunna say something.’ This was the conduct the subject of the charge of conduct endangering life (charge 10). Hanlon was found not guilty of this charge.

After about five minutes, the complainant called 000. The call was recorded as having occurred on 29 January 2015 at 13:20 and was as follows:

Complainant: ... My husband has broken into my apartment and beat me up.

Operator:       OK. Just take a deep breath. Is he still there or he’s left?
Complainant: I don’t know. ...
Operator:       OK. So it’s your ex-husband, is it?
Complainant:           Yes.
Operator: OK. Just a moment. And when you say, beat you up, what did he do?

Complainant:           He punched me in the face.
Operator:       Just a moment.
Complainant:           He tried to suffocate me. ... The door is broken. He can come back at any time. ...

Operator:       … What’s his name?
Complainant:           Craig.
Operator:       And his last name?
Complainant:           Hanlon. ...
Operator:       Did he use any weapons or not?
Complainant:           He pushed himself through the front door. ... He broke the door and I can’t lock the door.

Operator:       I understand. Did he look drug or alcohol affected?
Complainant:           No. ...
Operator:       ... Do you know if he left in a car or on foot or you’re not sure?
Complainant:   In a car.
Operator:       Did you see what the car looked like?
Complainant: It’s a white ... Corolla.
Operator:       … Did you see which way he drove off or not?
Complainant:           No, no. .... I don’t know how to lock – what I’m s’pose to do now without the door.

Operator: They [the police] will be there as soon as they can.

When the police arrived, they took photographs of the scene, including the damaged door to the complainant’s unit, and photographs of her injuries.

Grounds of appeal

Hanlon relies on two grounds of appeal:

1.The judge erred in her directions to the jury as to the meaning of the term ‘beyond reasonable doubt’.
2.The guilty verdicts of the jury are unsafe and unsatisfactory in that, any jury acting reasonably, must have had a reasonable doubt that the applicant attended at the home of the complainant on 29 January 2015 and committed the offences the subject of the guilty verdicts.

Directions on ‘beyond reasonable doubt’ (ground 1)

On 19 October 2016, early on the first day of the judge’s charge to the jury, her Honour said the following about the phrase ‘beyond reasonable doubt’:

They are plain English words, they mean what they say. If you are satisfied beyond reasonable doubt that the accused has committed any one of the crimes with which he is charged then you must — that is your duty — bring in a verdict of guilty on that charge. If you have a reasonable doubt as to whether he did commit a particular crime, then you must acquit, that is bring in a verdict of not guilty.
If, at the end of your deliberations in relation to any charge you say, ‘Well it is a bit fishy, he’s probably guilty’, that is not enough, that is not the standard of proof in a criminal trial, which is beyond reasonable doubt. I emphasise the word, ‘reasonable’. It is not just any doubt which would cause you to bring in a verdict of not guilty. It has to be a reasonable doubt. So, a doubt which might be remote or far-fetched would not be reasonable. So, you bring in a verdict of not guilty if you do have a reasonable doubt. If you have a reasonable doubt about whether he is guilty, then that is your duty to bring in a verdict of not guilty. If you are satisfied beyond reasonable doubt that the prosecution has proved its case, then your duty is to bring in a verdict of guilty.[2]

[2]Emphasis added.

No exception was taken to this part of the judge’s charge.

In his written case, Hanlon submits that at this stage in the judge’s charge, the circumstances in which some further explanation of the phrase ‘beyond reasonable doubt’ might properly be called for had not arisen. The jury had not asked for any such explanation. The judge therefore erred when she directed the jury in the terms that she did; she improperly invited the jury to engage in further analysis of their mental processes to establish whether any doubt that they were experiencing might be reasonable or might be remote or far-fetched. The effect, Hanlon submits, was to raise the real potential of improperly diluting the criminal standard of proof, in particular where not guilty findings on the other charges demonstrated that the jury had a doubt about large parts of the complainant’s evidence. The danger was said to be that the jury’s verdict was arrived at after a process that involved the jury attempting to differentiate between their respective doubts on different charges on the basis that they might or might not be remote or far-fetched.

Hanlon, in his written case, relies on the decision of the Court of Appeal in Dookheea v The Queen.[3] Hanlon submits that the judge’s direction did not accord with the Court of Appeal’s reiteration that:

a doubt held by a jury is, by definition, a reasonable doubt. As the High Court said in Green,^[[4]] ‘a reasonable doubt is a doubt which a particular jury entertain in the circumstances‘. It is an error, therefore, to suggest to jurors that they may entertain a doubt which is not a ‘reasonable’ doubt and on that basis proceed to convict the accused.[5]

[3][2016] VSCA 67 (‘Dookheea’). The written case was prepared after the High Court granted special leave to appeal from the Court of Appeal but before the High Court allowed the appeal. The High Court’s decision is discussed at [22]-[25] below.

[4]Green v The Queen (1971) 126 CLR 28 (‘Green’).

[5]Dookheea [2016] VSCA 67 [90] (citation omitted).

He submits that it is not material that no exception was taken by defence counsel[6] because, if the direction led to a substantial miscarriage of justice, a failure to take exception should not stand in the way of the appeal being allowed. In Dookheea the Court of Appeal held that the failure by defence counsel at trial to take exception to the judge’s direction to the effect that it was necessary for the Crown to have satisfied the jury that the accused had the requisite intention ‘not beyond any doubt, but beyond reasonable doubt’, could not stand in the way of the appeal succeeding.[7]
[6]Counsel who appeared for Hanlon on the application for leave to appeal did not appear at the trial.
[7]Dookheea [2016] VSCA 67 [89].

The Crown in its written case submits that the judge did not err in her direction about the meaning of the phrase ‘beyond reasonable doubt’; but even if there was an error, it did not result in a miscarriage of justice. The fact that the jury did not ask the judge to give an explanation of the phrase did not limit the power of her Honour nonetheless to do so under s 63(2) of the Jury Directions Act 2015 (‘the Act’). Section 63 provides:

63 When trial judge may explain ‘proof beyond reasonable doubt’
(1) A trial judge may give the jury an explanation of the phrase ‘proof beyond reasonable doubt’ if the jury asks the trial judge—
(a) a direct question about the meaning of the phrase; or
(b) a question that indirectly raises the meaning of the phrase.
(2) Subsection (1) does not limit any other power of a trial judge to give the jury an explanation of the phrase ‘proof beyond reasonable doubt’.

The Crown submits that this provision, together with s 64 of the Act, could be said to give to trial judges greater scope than previously to explain the phrase. Section 64 provides:

64 How explanation may be given in response to jury question
(1) If the jury has asked a direct question about the meaning of the phrase, or a question that indirectly raises the meaning of the phrase, ‘proof beyond reasonable doubt’, the trial judge may—
(a) refer to—
(i) the presumption of innocence; and
(ii) the prosecution's obligation to prove that the accused is guilty; or

(b) indicate that it is not enough for the prosecution to persuade the jury that the accused is probably guilty or very likely to be guilty; or

(c) indicate that—
(i) it is almost impossible to prove anything with absolute certainty when reconstructing past events; and

(ii) the prosecution does not have to do so; or
(d) indicate that the jury cannot be satisfied that the accused is guilty if the jury has a reasonable doubt about whether the accused is guilty; or
(e) indicate that a reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility.

(2) The trial judge may adapt his or her explanation of the phrase ‘proof beyond reasonable doubt’ in order to respond to the particular question asked by the jury.

In any event, the Crown contends that there was no misdirection; the judge’s direction taken as a whole did not diminish the standard of proof, nor did it invite the jury to evaluate its mental processes. This is borne out by the fact that neither party took exception at the time. Although the direction may have been ‘undesirable’, it included an explanation akin to that set out in a combination of s 64(1)(b), (d) and (e) of the Act, and as such, it was permissible in appropriate circumstances and less capable of being impugned. The direction also occurred early in the charge, at a point where the judge was outlining general concepts and not focussing on any particular element of an offence, and any invitation to scrutinise their mental processes was minimised by her Honour’s reiteration of the importance of the need for the jury to be satisfied beyond reasonable doubt at several other points in the charge.

In relation to whether there was any miscarriage of justice, the Crown again points to the lack of any exception taken by trial counsel, indicating the direction was ‘fairly innocuous’. The direction was later followed by the remainder of the charge on the 10 charges to be considered, during which the judge arranged for the jury to be provided with a checklist to assist with that exercise, and the repetition, in conventional terms, of the phrase ‘beyond reasonable doubt’ on 28 subsequent occasions. The Crown further submits that the differing verdicts show that the jury well understood and applied the concept of ‘beyond reasonable doubt’.

Subsequent to the filing of the parties’ written cases, the High Court, in R v Dookhea,[8] allowed an appeal and set aside the orders made by the Court of Appeal in Dookheea. The High Court accepted that while it may be ‘unnecessary and unwise’[9] for a trial judge to contrast reasonable doubt with ‘any doubt’, it does not follow that such a direction will always result in a substantial miscarriage of justice and therefore that a trial judge would be in error to direct a jury in such terms. The High Court held that the reasoning of King CJ in R v Compton[10] should not be followed. The High Court observed that in Compton King CJ had:

premised his conclusion — that such a direction will invariably be productive of a miscarriage of justice — on the notion that reasonable doubt is a doubt which is entertained by a reasonable person in the circumstances and hence that reasonable doubt encompasses any doubt entertained by the jury acting reasonably. King CJ therefore concluded that to suggest to a jury that there is a difference between a reasonable doubt and any doubt is calculated to cause the jury to subject their mental processes to analysis, to incline the jury to discount a doubt for fear that it may not be reasonable, and thus to obscure the point that the accused must be given the benefit of any doubt which the members of the jury as a reasonable jury may have.[11]

[8](2017) 347 ALR 529.

[9]R v Dookheea (2017) 347 ALR 529, 538 [28].

[10](2013) 237 A Crim R 177 (South Australian Court of Criminal Appeal) (‘Compton’).

[11]R v Dookheea (2017) 347 ALR 529, 538-9 [29] (citation omitted).

The High Court said that:

it is not the case that whenever a reasonable jury recognises the existence of a doubt, no matter how slight the doubt may be, the jury ipso facto has a reasonable doubt. Rather, … a reasonable doubt is a doubt which the jury as a reasonable jury considers to be reasonable (albeit, of course, that different jurors might have different reasons for their own reasonable doubt). Phillips JA accurately summarised the position in R v Chatzidimitriou:
the test remains one of reasonable doubt, not of any doubt at all; and ... the jury’s function includes determining what is reasonable doubt — or to put that in more concrete fashion, whether the doubt which is left (if any) is reasonable doubt or not. (emphasis in original)[12]

[12]R v Dookheea (2017) 347 ALR 529, 541-2 [34] (citations omitted).

The High Court therefore concluded that:

as the authority of this Court stands, it is generally speaking undesirable for a trial judge to contrast reasonable doubt with any doubt. But, for the reasons already given, in point of principle it is not wrong to notice the distinction; and, therefore, as a matter of authority, it is not necessarily determinative of an appeal against conviction that a trial judge may for one reason or another happen to do so. When and if a trial judge does mention the distinction, the question is whether the words spoken in terms of the record of the summing up are such that the jury would have derived a false perception of the basis for deciding whether the Crown has proved its case. And as was held in Green and stressed in La Fontaine, that is a question to be decided by taking the summing up as a whole and as a jury listening to it might understand it, not upon some subtle examination of its transcript record or by undue prominence being given to any of its parts. Moreover, where, as here, the accused has been represented at trial by competent counsel, the reaction of defence counsel on hearing the impugned portion of the summing up is a cogent consideration.[13]

[13]R v Dookheea (2017) 347 ALR 529, 542-3 [37] (citations omitted).

The Court also observed, in passing, that:

as authority stands, it is generally speaking unwise for a trial judge to attempt any explication of the concept of reasonable doubt beyond observing that the expression means what it says and that it is for the jury to decide whether they are left with a reasonable doubt (and in certain circumstances explaining that a reasonable doubt does not include fanciful possibilities) …[14]

[14]R v Dookheea (2017) 347 ALR 529, 544 [41] (emphasis added) citing Green (1971) 126 CLR 28, 33.

In Green the High Court had noted that:

If during the course of a trial, particularly in his address to the jury, counsel for the accused has laboured the emphasis on the onus of proof to such a degree as to suggest to the minds of the jury that possibilities which are in truth fantastic or completely unreal ought by them to be regarded as affording a reason for doubt, it would be proper and indeed necessary for the presiding judge to restore, but to do no more than restore, the balance. In such a case the judge can properly instruct the jury that fantastic and unreal possibilities ought not to be regarded by them as the source of reasonable doubt.[15]

[15]Green (1971) 126 CLR 28, 33 (emphasis added).

Senior counsel for Hanlon conceded during oral submissions before this Court that if the error in the judge’s direction was confined to instructing the jury that the Crown had to satisfy them not beyond any doubt, but beyond reasonable doubt, then the decision of the High Court ‘would be fatal to such a ground of appeal’. However, the judge went beyond that, introducing the concept of a ‘remote’ doubt, which senior counsel submits would lead to greater confusion than the distinction that was the subject of challenge in R v Dookheea. He submits that the concept of a ‘remote’ doubt is nebulous and difficult to identify. How were members of the jury expected to resolve amongst themselves whether any doubt might or might not be remote? Further, even if it could be said that the judge had some power to give the direction notwithstanding that no question was asked by the jury and no directions sought by counsel, the idea of a ‘remote’ doubt was said not to fall within the guidance provided by s 64(1) of the Act. Even when the charge is viewed as a whole, he submits, the introduction of the concept of the jury assessing whether any remaining doubt could be said to be a ‘remote’ one produced the potential for such uncertainty that a miscarriage of justice has occurred.

Further, senior counsel for Hanlon submits that the circumstance involving fanciful possibilities referred to in Green and noted by the High Court in R v Dookheea had not arisen in this case. Defence counsel had not addressed the jury in a manner that required the judge to give a further explanation to restore the balance, and the prosecutor had not sought such a correction.

Senior counsel for the Crown in his oral submissions emphasised that while it would have been better if the judge had not given the direction she did, it was not wrong in law and it did not create a false impression in the jury’s mind of the proper basis for deciding the case. He submits that, in using the phrase ‘remote or far-fetched’, the judge was not inviting the jury to dwell on two distinct concepts, to consider whether a doubt might be remote, on the one hand, or far-fetched, on the other. Rather, he urges this Court to accept that these words are a turn of phrase, to be read together as a matter of common sense, to mean a ‘fanciful’ doubt and to be contrasted with a ‘reasonable doubt’. As the High Court noted in R v Dookheea,[16] it is clear from authority that to describe a doubt as ‘fanciful’ does not inevitably lead to a miscarriage of justice. So too, in R v Hettiarachchi the Court of Appeal held that, although the explanation was ‘unnecessary and undesirable’, there was no miscarriage of justice when a trial judge directed a jury that ‘beyond reasonable doubt does not mean fanciful but just beyond reasonable doubt’.[17] The Court of Appeal concluded:

The problem with that direction was said to be that it invited the jury to subject their mental state to examination in order to determine whether the doubt about guilt which they may have thought existed was to be characterized as fanciful or reasonable, and thus was calculated to produce in the mind of the jury an impression that a view held by them that there was a doubt about guilt was to be disregarded unless it passed some further test.
In our view, that could not be said of the directions given in this case. The judge’s statement that the jury had to be satisfied beyond reasonable doubt, not ‘fanciful’, just reasonable doubt, did not postulate a doubt about guilt which the jury thought existed, or invite them to subject their mental state to examination in order to determine whether the doubt which they thought existed was ‘fanciful’, as distinct from reasonable. It was directed at a process of definition logically anterior to the identification of any doubt of a relevant kind. In context, it was similar in effect to the admonition in R v Neilan that ‘beyond reasonable doubt is not no doubt, but [beyond] reasonable doubt’.[18]

[16](2017) 347 ALR 529, 541-2 [34], 542 [36], 544 [41].

[17][2009] VSCA 270 [51].

[18]R v Hettiarachchi [2009] VSCA 270 [58]-[59] (citations omitted).

Further, although here the judge delivered her charge[19] after the Court of Appeal decision in Dookheea,[20] but before the High Court had published its decision,[21] senior counsel for the Crown submitted that it was still of significance that defence counsel at trial did not raise any exception to the charge. The absence of any reaction by counsel is a matter, as the High Court observed, that can be taken into account as ‘a cogent consideration’[22] when determining whether the jury has been misdirected. I agree.
[19]The charge was delivered over 19 and 20 October 2016.
[20]Dookheea [2016] VSCA 67 was delivered on 12 April 2016.
[21]R v Dookheea (2017) 347 ALR 529 was delivered on 13 September 2017.
[22]R v Dookheea (2017) 347 ALR 529, 543 [37].

In my view, the judge’s use of the words ‘remote or far-fetched’ to describe a doubt which would not be a reasonable doubt is analogous to describing a doubt as ‘fanciful’ to draw the same contrast. In this context the word ‘remote’ and the word ‘far-fetched’ mean the same thing and are a different way of characterising a doubt as no more than a ‘fanciful possibilit[y]’.[23] While it would have been preferable if the judge had not sought to expand upon the meaning of ‘reasonable doubt’ in these circumstances, it was no more than an attempt by the judge, through the use of colloquial language with which the jury was likely to be familiar, to ensure that fantastic or unreal possibilities were not treated as affording a reasonable doubt. Considering the charge as a whole, I do not consider that the jury would have derived a false perception of the basis upon which the Crown had to prove its case.
[23]R v Dookheea (2017) 347 ALR 529, 544 [41].

I reject the first ground of appeal.

Unsafe and unsatisfactory verdict (ground 2)

In summary, Hanlon submits that a large combination of matters raised by the evidence should have led any jury, acting reasonably, to find that he was not guilty of charges 6 (aggravated burglary) and 9 (common law assault). He submits that the doubts that led the jury to acquit on all the other charges should also have applied to those two charges. In particular, he submits that there were a number of matters within the evidence that should have been seen as affecting the complainant’s credit in a general way. For example, during cross-examination the complainant admitted lying at the committal when she said Hanlon had not been violent to her before and admitted that part of her police statement was untrue. Hanlon points to inconsistencies between the account given by the complainant and the objective evidence provided by telephone records and the like. There was a question raised in the trial about whether the complainant had a number of people supplying her with drugs. Hanlon submits that there was evidence of other persons who were involved in the supply of illegal drugs attending the complainant’s unit and arguing with her, which a jury, acting reasonably, should have taken into account. In combination, these matters, submits Hanlon, should have given rise to a reasonable doubt about whether Hanlon was guilty on all the charges, including charges 6 and 9. They should have provided a ‘solid obstacle’ to a finding of guilt on charges 6 and 9 by any jury acting reasonably.

In summary, the Crown’s response is to submit that it could not be said that the jury must have entertained a doubt about Hanlon’s guilt based on the nature of the evidence in relation to charges 6 and 9. The authorities are clear that to make out the ground that a verdict was unsafe and unsatisfactory it is not sufficient that there was evidence which may have led the jury to entertain a reasonable doubt; it is necessary to establish that the evidence was such that the jury must have had a reasonable doubt about an accused’s guilt. Hayne J emphasised this distinction in Libke v The Queen:[24]

It is clear that the evidence that was adduced at the trial did not all point to the appellant’s guilt on this first count [of rape]. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant’s guilt.[25]

[24](2007) 230 CLR 559 (‘Libke’). See also M v The Queen (1994) 181 CLR 487, 492-4.

[25]Libke (2007) 230 CLR 559, 596-7 [113] (emphasis in original), applied by this Court in, for example, Ha v The Queen [2014] VSCA 335 [74].

The Crown submits that the jury was in the best position to see the complainant give her evidence. Even though it was clear from the transcript that at times the complainant struggled with parts of her evidence, it was open to the jury to accept her evidence on some charges and not on others.

The Crown accepts that there were inconsistencies in the complainant’s evidence about the first incident. The complainant’s evidence as to the date of the first incident, 17 January 2015, was problematic. The photographs were proven to have been taken on 20 January 2015. The prosecution invited conviction on either basis — namely, that the first incident occurred on either 17 or 20 January — and the judge endorsed that by way of direction. However, the defence emphasised that the complainant had not offered the date of 20 January, that she had always said 17 January, and the defence submitted that the discrepancy in the date showed the complainant to have lied and this completely undermined the complainant’s account of the first incident. Moreover, the photographs had only been taken by the complainant and not the police. This may well have explained why the jury could have had a reasonable doubt in relation to charges 1-5.

However, the Crown submits, there are clear reasons why the jury was entitled to find charges 6 and 9 made out. It submits that the complainant’s credit was not affected in a general way so that her evidence should not have been accepted by the jury. The observable damage to the front door to the complainant’s home was objective evidence that an offence had been committed and was consistent with the complainant’s account that Hanlon smashed through the door, damaging the door frame. On the key issue as to who committed the offences she did not waiver; she gave consistent accounts in her 000 call, to the police, to ambulance members, and the jury, that her ex-husband, Hanlon, was the perpetrator. The Crown submits that, despite the complainant’s confusion about times in relation to the second incident, the jury was entitled to accept the complainant’s evidence that Hanlon broke into her home and assaulted her, especially given the other supporting evidence, and that there was nothing which meant that the jury should necessarily have entertained a doubt about Hanlon’s guilt on the charges of aggravated burglary and common assault.

The complaints made by Hanlon raise the following issues:

(1) The complainant’s unreliability as a witness of truth;

(2) Inconsistencies shown by the telephone records;

(3) Evidence of mistaken identity — the man with the black Vespa;

(4) Other inconsistencies — the medical evidence; the pink cap.

It is convenient to consider these issues in turn.

(1) The complainant’s unreliability as a witness of truth

Hanlon submits that the complainant’s admitted perjury at the committal and unreliability so affected her evidence that any jury acting reasonably could not find that he had been at the complainant’s home on 29 January 2015 and committed the offences the subject of charges 6 and 9. He points to the complainant’s admissions that she lied at the committal about:

(a) whether he had ever been violent when he and the complainant were still married;

(b) whether she was scared of Hanlon at the times when she said he came to her unit on 25, 26, 27 and 29 January 2015;

(c) whether she had a number of people supplying her with drugs;

(d) whether those suppliers would come to her home;

(e) whether those suppliers came to her home once or twice a week;

(f) whether the complainant was funding her own drug use.

Hanlon further relies on the admissions by the complainant during cross-examination at both the committal and then at trial that she had been untruthful when she said in a signed statement she gave to police on 29 January 2015 that Hanlon had withdrawn all the money out of their bank account and left her with no money. She conceded at the committal and at trial that she too had withdrawn money from that joint bank account for living expenses.

The Crown submits that it was open to the jury to view the complainant as generally an honest witness given her willingness to admit that she lied at the committal, and that she did so out of fear and love of Hanlon. As mentioned, the Crown submits that, although there was a wholesale attack on the complainant’s credibility, this did not affect the kernel of her evidence about the second incident. The jury was in a position to see and hear her, and evaluate whether her admitted lies rendered the whole of her evidence unreliable.

It is instructive to consider the complainant’s evidence in two broad categories: first, whether Hanlon had been violent towards her during the marriage and whether her fear of him was present when he went to her home in January 2015; and second, the evidence of her drug use and her drug suppliers.

(i) History of violence and fear in January 2015

The complainant gave evidence that she and Hanlon were in a relationship for 13 years, and married for 10 years. They moved to a unit in Reservoir in November 2014 and then separated. The unit was in a block of four units. It was the third unit down a driveway. All the units shared the same driveway. The complainant remained there, while Hanlon moved elsewhere, although he retained keys to their unit. He came around to the unit from time to time, sometimes at the complainant’s invitation, but mostly not. One day during a visit she ‘removed the key from his key ring without him knowing so he didn’t come in and out when he pleased’.

In relation to Hanlon’s alleged violence during their marriage, the complainant in cross-examination insisted that he was physically violent towards her and gave the following evidence:

Q: What do you say he did, how was he violent?
A:There were a lot of different things he did. He, he would do what happened on the 29th, use force to block my airways, hit me, throw furniture at me, use force with his fingers into my neck so I couldn't move, lock me in my bedroom.

The complainant insisted that her description in her statement to police on 29 January 2015 of the acts of violence she said Hanlon committed in the 12 months leading up to the two incidents was accurate. She described Hanlon every couple of weeks grabbing her by the throat and lifting her off the ground so her feet could not touch the floor, causing ‘excruciating’ pain, digging his fingers into the back of her neck, throwing her to the ground and attempting to smother her with his hands.

However, the complainant conceded that during the committal she had agreed that Hanlon had not been abusive towards her during the marriage. She insisted that she was lying then, and now at trial she maintained that Hanlon had been violent.

When confronted in cross-examination with her evidence at the committal that the only instances of violence had been on 17 and 29 January 2015, the complainant insisted that she had been lying at the committal. Her evidence at trial was as follows:

Q:I just want to go back to that and I want to read you a couple of more questions and answers from the committal?
…
‘Question: “Craig was never abusive towards you during your marriage?” Answer: “No, that's right.” Question: “It's only what you say occurs on 17 January and 29 January?” Answer: “Just only on those days that I have mentioned in my statements otherwise we had - there was never, ever any abuse in our relationship.” Question: “So prior to November 2014?” Answer: “Yes.” And then the question continues, “There was never any incidents of violence?” Answer: “No, not violence. We had our arguments just like any other married couple would have their arguments but nothing where it became, yeah, out of hand and where there was any violence committed.” Question: “None at all?” Answer: “No.” Do you recall, or do you accept that you were asked those questions and gave those answers?

A:       Yes.
Q:       Do you still maintain that those answers were a lie?
A:       Yes, they were.
Q:       Another lie under oath?
A:       I was scared.
Q:You've changed your story because it never happened haven't you?
A:No. I was scared.

Q: You're lying to the jury about family violence aren't you?
A: No.
Q:There was never any family violence in your marriage was there, …?
A:Yes, there was.[26]

[26]Emphasis added.

Later, when the complainant was pressed about her lies at the committal with respect to the violence in the marriage, the following exchange occurred:

Q:Isn’t it the case … that you’ve changed your story because it never happened?
A:No, I didn’t change my story because it didn’t happen, I changed my story because I was scared at the time of the committal.
Q:Craig was never at your door on these mornings was he…?
A:Yes, he was. Why would I say he was if he wasn’t. I was still in love with Craig at the time even though what happened happened.[27]

[27]Emphasis added.

On re-examination, the complainant was asked again about her answers at the committal:

Q:Why did you not tell the truth about those things at committal?
A:Why?
Q:Yes, why?
A:Because I was afraid, I was scared.
Q:What were you scared of?
A:I was scared that maybe I would be hurt again.
Q:What caused you to be scared? ...
A:Because previously I was harmed by Craig and I thought that maybe if I was telling the truth that he could come back and do something further to me.[28]

[28]Emphasis added.

With respect to the complainant’s evidence that she was still in love with Hanlon, Hanlon had also said to the police in his record of interview, in effect, that he considered that emotionally the complainant had not yet fully disengaged herself from their relationship, although he had. In her reasons for sentence, the judge addressed Hanlon with respect to his record of interview and said:

In your record of interview you told the police that the relationship was over from your point of view, that there was ‘nothing there anymore between the two of (you)’ as far as you were concerned, although ‘there might have been in Rita’s eyes’.[29]

[29]DPP v Hanlon [2016] VCC 1970 [20(3)].

In my view, it was open to the jury to accept that the complainant still loved Hanlon and also that, at the time of the committal, she was scared of him and feared being hurt again if she told the truth about his violence during their marriage. This evidence also indicates that there was a complex residual emotional connection between Hanlon and the complainant, at least from the complainant’s perspective. In this context it should also be recalled that the complainant’s evidence was that when Hanlon forced his way through the door of the unit on 29 January 2015, he was crying. In my view it is significant that the complainant and Hanlon had separated only a few months before, in November 2014. What might be described as unfinished emotional business between the complainant and Hanlon, at least from the complainant’s perspective, also assists in explaining why there continued to be considerable communication between them, especially by calls and texts. This is discussed below.[30]

(ii) Drug suppliers

[30]See [61]-[74] below.

There was evidence of the complainant’s drug use. During her cross-examination she conceded that she had been using the drug ‘ice’ on a daily basis in the two years leading up to the alleged two incidents. She could not recall if she had used it on 17 January 2015 prior to the first incident, but she agreed she had used it on 29 January 2015 and was still affected by the drug at the time she gave her statement to the police. She agreed that her use of the drug would often keep her awake for days without sleeping, but she said she could not recall if during these periods she would send texts and make calls to people she knew. Although she agreed she had friends and acquaintances who also used the drug, her evidence was that those people would ‘very rarely’ visit her at her home. She insisted that she never paid any money for drugs. Hanlon had introduced the complainant to the drug ‘ice’. Her evidence was that before she met Hanlon she had never used any illegal drugs.

During cross-examination she was read evidence she gave at the committal that her drug suppliers would regularly come to her home once or twice a week in the period November 2014 to January 2015. She said at first that she could not recall giving that evidence. Later in her cross-examination, she said that she had lied at the committal about there being ‘suppliers’ of drugs coming to her home because she was scared and that it was only one person who came to her home with drugs.

At this point in the trial the judge asked the jury to withdraw and expressed concerns she had to counsel about the answers that might be obtained if counsel for Hanlon continued to ask questions about the identity of the one person who was supplying her with drugs. There was a risk that the complainant would name Hanlon.

The judge allowed a voir dire so that the complainant could be questioned by defence counsel about why she said in her evidence she lied at the committal about who was supplying her with drugs because she was scared:

Q:… before when I asked you —when I read that transcript to you and I asked you whether it was the truth, you said it wasn’t, the committal transcript?
A:Yes
Q: ... I think your answer was ... you were too scared to say who it was who was coming to your house?
A:Yes.
HER HONOUR: She said, ‘It was not people coming to the house, it was one person supplying the drugs’. I didn’t get the whole of the answer. ‘I wasn’t telling the truth because I was scared’.
A:Yes, that’s right.
Q:Who were you scared of?
A:The accused.
Q: And who was coming to your house supplying drugs?
A:The accused.
Q:It wasn’t a person called Nick.
A:No.
Q:So you were saying that the accused was coming to your house every week supplying you with drugs, is that correct?
A:He came to my house more often. He came to my house, yeah. He wasn’t supplying me with drugs every time he came to my apartment but he would supply me with the drug a couple of times a week.
Q:And that was in the period November to January was it?
A:Yes.
Q:That was your only source of drugs was it?
A:Correct. I never, like I said, I didn’t pay for drugs.
Q:Why would you be too scared to say that?
A:Because I didn’t ...
Q:I need to know the answer to these things, your Honour.
HER HONOUR: Sorry?
A:I didn’t want to incriminate Craig in front of the jury.
Q:I don’t want any insinuations, sorry. Do you agree, Ms Hanlon, you’ve never given this information to anyone prior to today?
A:Yes.
Q:This is the first time you’ve said it?
A:Yes.[31]

[31]Emphasis added.

A discussion then took place between the judge and defence counsel as to whether this evidence should go before the jury. Defence counsel urged that it was unnecessary and unfair for the evidence that Hanlon was the complainant’s drug supplier to go before the jury; all the evidence the jury needed to hear is that the complainant lied because she’s trying to protect the person who supplied her with drugs. The judge responded by explaining that defence counsel had opened up a ‘can of worms’ and ruled against her. Her Honour said:

the Crown case will either succeed or fail essentially on whether the complainant is accepted as a witness who can be believed on the allegations which are the subject of the charges against your client. You say I want to attack her character, I want to tell the jury she’s an unreliable witness because she’s a drug user, because she’s had people come into the house to supply drugs to her and because she’s admitted lying on oath in the Magistrate’s Court.
She wants to say in defence of her credit, yes, I was a drug user, myself and the accused used together, he was the one I supplied with drugs. [sic] I lied on oath because I was scared of the man who I say had physically attacked me if I revealed him as a drug trafficker. What you’re saying in effect is, well, it’s prejudice in that it’s bad for your client for the jury to know that he supplied her with drugs and it outweighs any probative effect.
But by the prosecution being prohibited from revealing by the complainant’s evidence [that] the identity of the drug supplier was your client they have no way of rehabilitating her credit because it’s all tied up together. So the probative value of the complainant’s evidence is eroded by the inability of the Crown to rehabilitate her credit in that way. ...
...
... [Y]ou’ve opened up a can of worms. You chose, as I see it, to put a sanitised select excerpt of p. 8 of the transcript of the committal to try and fit in with what your client has said in his record of interview about her having suppliers of drugs come to the house. It’s come unstuck because she doesn’t agree with you and she says that there was only one supplier and that was your client. So you can’t have it both ways.
The jury cannot be left in a situation where your client is protected and thereby the Crown loses the ability to rehabilitate the credit of the complainant which has been attacked by you. So it’s not right to say that the prejudicial effect of her saying the supplier of the drugs was the accused outweighs the probative value of her evidence, because the probative value of her evidence is inextricably intertwined with her credit and whether she can give a satisfactory explanation as to why she lied on oath.

The jury was recalled and the complainant gave evidence that the person who supplied her with drugs was Hanlon. She denied that other dealers came to her house to supply her with drugs. However, the complainant accepted that when she and Hanlon were still a couple and living in Macleod in September 2014, before they moved to Reservoir, Hanlon went to Queensland to try to get away from drugs, and while he was away she had ‘drug associates’ visit their unit.

In my view, it was open to the jury to accept: (1) the complainant’s evidence that she had lied at the committal about her drug suppliers; and (2) the reasons she gave in evidence as to why she had lied. The jury could well have adopted the path of reasoning the judge understood, namely, that the complainant was scared about exposing that Hanlon was her drug supplier and this was associated with her fear of his violence. There was also an inhibition on behalf of the complainant to ‘incriminate’ Hanlon for drug trafficking when her only concern was to protect her personal safety and her evidence was that she retained deep feelings of affection for Hanlon. This context also assists in explaining why it might be that Hanlon continued to supply the complainant with drugs despite the ambivalent and disintegrating nature of their relationship.

Given the willingness of the complainant to admit that she lied at the committal, and to give explanations for that conduct, in my view it was open to the jury to accept the core of her evidence about the second incident as honest and truthful.

(2) Inconsistencies shown by telephone records

Hanlon submits that when the relevant telephone records are examined, it can be seen that there are a number of inconsistencies between the evidence given by the complainant about how events unfolded with respect to the two incidents as well her contact with him and her alleged fear of him. He submits that these inconsistencies meant that any jury acting reasonably could not accept the complainant’s evidence that Hanlon committed the offences on 29 January 2015 of which he was convicted.

In evidence in chief, the complainant said she could not recall if calls were made to her telephone from Hanlon’s telephone on the day of the second incident. She was shown phone records that demonstrated that there were multiple calls from Hanlon’s phone to her phone on 29 January 2015 and vice versa. The complainant’s response, when confronted with the telephone records, was to say she could not deny that the calls were made, she was not keeping track of the time and could not be sure of the time.

The Crown submits that it was reasonably open to the jury to consider that the complainant’s failure to remember the calls, or the times at which they were made, is not a surprising feature of the case given the level of violence alleged which was supported by, for example, the objective evidence of the damage to the door.

It is worthwhile setting out in some detail the complainant’s evidence on the second incident. At trial, she gave evidence that on 29 January 2015, Hanlon arrived at her unit at ‘about 12:30 in the afternoon’. She described the events in the following terms in her evidence in chief:

Q:What did you hear from inside the house, what happened?
A:He was yelling, he was angry, more angry than he was the other days because he couldn’t get in the other — I wouldn’t let him in the other days so he was very angry, he was yelling.

Q: What was he yelling?
A:‘Open the fucking door, I’m gunna get in, when I get in I’m gunna bash the fuck out of you.’

Q: What was happening with the door if anything?
A:Craig was trying to get in but the door was locked again. He — it went [quiet] for, like, about three, four minutes.
…
Q: Was there knocking on the door?
A:Banging. He was just banging on the door trying to open the door, like, it was locked so I didn’t think he would get in.
Q:And what were you doing inside when this started happening?
A:I was sitting on the couch in the lounge room.
Q:Did you remain sitting there or what happened?
A:Yeah, I remained sitting there.
Q:What happened then? You said it went quiet I think or you were about to say it went quiet for a couple of minutes?
A:Yes, because I actually thought that he’d left and I was safe, but then in one instance Craig came smashing through the front door and parts of the door just went everywhere. The door frame was broken, the door handle was broken, the hinges went flying across the other side of the room and I was in shock, I just sat there and, yeah.
Q:What happened, what did he say, what did he do when he came in through the door?
A:Craig saw me sitting on the couch, he grabbed me and he raised me off the ground by my neck and just left me dangling. He slapped me across the face a couple of times.
Q:What were you …?
A:He was crying at the same time. When he did come in he was actually crying and I couldn’t work out why he was crying.

…
Q: You said he’d lifted you up?
A:Yeah, raised me, like, had both hands around my neck and raised me off the ground, had me dangling like I was, yeah. I was in excruciating pain so from there he …
…

Q: [D]id you say before that he slapped you?
A: Yeah, he did.
Q:What sort of force did he use when he slapped you?
A:Not really bad, like, I was okay, I wasn't bleeding or anything. He held me up off the ground and travelled with me into the bedroom. I was trying to, like, grab onto the walls or anything so I could just relieve the pain of my neck.

…
Q:In the bedroom what happened?
A:Craig threw me on my back on the bed. He pinned me down with both knees into my arms.
Q:Do you remember anything he was saying at this point?
A:He was crying.
…
Q:You’ve got to the point I think you said to the members of the jury you were on the bed?
A:Yeah, with his knees into my arms and then he started suffocating me. He started — he blocked my airways, both my mouth and my nose. …

Q: What did he use to block your mouth?
A: His hand.
Q:And how did he physically do it, what’s happening?
A:He just put one hand over my face which blocked both my nose and my mouth so I couldn’t breathe.

Q: What sort of force or pressure?
A: There was pressure, a lot.
Q:Did this happen once?
A:He released his hand away. I was going to say something and he said, ‘You're gunna fuckin’ speak, aren’t you? You’re gunna say something.’ So then he did it again the second time.

The complainant gave evidence that she has epilepsy and feared that while Hanlon was holding his hand over her face, she might have a fit. She said she was scared. She said he grabbed a small pillow, looked at her, then put it down and ran out. Her evidence was: ‘I laid there for about ten minutes because I was in so much pain and then I got myself up off the bed and called … triple zero.’

During cross-examination, the complainant said she could not remember seeing Hanlon using his telephone while he was at her unit on the day; she said: ‘I don’t know if he did and I don’t know if he didn’t’. Hanlon submits the complainant tried to change her evidence when she was confronted in cross-examination with telephone records which demonstrated that he called her for about five minutes at 12:45 pm, and then made nine brief calls at 12:51 pm (28 seconds), 12:52 pm (6 seconds), 12:53 pm (12 seconds), 12:56 pm (25 seconds), 12:57 pm (18 seconds), 12:58 pm (35 seconds), 12:59 pm (27 seconds), 13:14 pm (2 seconds) and 13:15 pm (2 seconds). The informant gave evidence that it is not possible to tell from the telephone records whether a call is a voice message or an actual conversation.

After being shown the records, the following exchange took place with defence counsel:

Q: What do you have to say about that?
A:That’s when I was — okay. That time when the phone calls were coming through, when Craig was at the door. I did not answer. I remained quiet. I didn’t want him knowing that I was in the house so he just kept ringing my phone. Please don’t quote me direct exactly on the time. This is just roughly from what I — I wasn’t looking at the time but …
Q:Aren’t you say[ing] that because I’ve confronted [you] with another phone record?
A:No.
Q:That has your phone connected to his phone for five minutes at a time you say he’s broken into your house and attacked you?
A:That’s when Craig was at the door.

Q: Aren’t you just changing the time again to suit the records?
A:No, I’m not. I was not 100 per cent sure on the exact time. I wasn’t keeping time. I wasn’t watching the time. That is what — the time was — the time that I’ve given is the timeframe that it felt to me that was — that it felt like that it was, but I didn’t actually look at the watch and know exactly what time it was at the time, if that makes sense.
…
Q:You told police when you made your statement on the day, that afternoon, that he’d come to your house at 12.30 and now when I put to you that there’s a phone call, a five minute phone call between your phone and his phone at 12.40 that day which contradicts you that he was in your house?
A:No.
Q:Assaulting you at the time that this phone [call] was said to happen, you’re now changing the time?
A:As I’ve said before and I’ve told what happened, my — it remains the same. What I said that happened has actually happened. The timing might be wrong but the incident actually happened.
Q:So your answer to that piece of evidence is, well, I’ll just change the times to suit the evidence now are you, is that what you’re doing?
A:No.
Q:You’re changing the time to suit the evidence you’ve now got in front of you?
A:No.
Q:If you look down at 12:51, 12:52, 12:53, 12:56, 12:57 and 12:58 pm.
...
Q:All calls between Mr Hanlon’s phone and your phone, and you agree all happening at the time that you say he’s in the house assaulting you, trying to suffocate you, do you agree with that?
A:Yes.
Q:How do you explain that?
A:The times might be different from what I’ve said but the incidents actually happened.
Q:Well, you rang 000 at 1:20, we know that for sure because you gave an account to the police?
A:Yes.

Q: And to the 000 operator about what had happened?
A: Yep.
Q:And that call came through at 1:20 in the afternoon. You’ve said and you’ve maintained in your evidence that it was ten minutes between him leaving and you calling 000, do you agree with that?
A:Yes.
Q:Yet all those calls happened between the time that you say he arrived and the time that you rang 000. So how do you explain it, how do you explain your times are wrong?
A:Like I said, I wasn’t keeping exact — I wasn’t watching the clock. This is what the time felt like to me at the time.
Q:Well, again, you’ve got 12:59 another call, 1:14 another call, 3:15 another call. Is he in your house calling your phone the entire time he’s trying to assault you and strangle you with a pillow, is that what you’re saying?

A: What did you say, sorry?
Q:All of those phone calls including one at … 12:59, 1:14 and 1:15 him calling your phone?
A:After the incident had happened.
Q:Well, you rang 000 at 1:20, there’s a phone call coming through at 12:59. That’s right when you say the incident’s occurring isn’t it?
A:The timing might be — the time might be all wrong but the incidents — …

Q: What do you say the timing is?
A:The incidents actually did happen. I am not here to lie, to say something that isn’t true.
Q:Well, you’ve lied before, you’ve lied, you’ve admitted you’ve lied before?
A:I’ve lied because I’ve been scared. I have been scared to tell the truth, and now I am telling the truth.
Q:How would anyone know what the truth is …? You just said before that you lie under oath?
A:I lied because I was scared.

Q: You are lying now?
A: I am not lying.

The Crown submits that the telephone records do not preclude the offending taking place as the complainant described because there were two windows of opportunity consistent with the telephone records during which Hanlon could have committed the acts, either before 1:00 pm or between 12:59 pm and 1:14 pm. In my view, it was open to the jury to accept that the second incident occurred at either of those times especially given the complainant’s repeated testimony that she was not keeping track of the exact time and was not checking the clock because she was either apprehending acts of violence or was being subjected to acts of violence.

Hanlon also relies on the telephone records as demonstrating that calls were made from Hanlon’s telephone to the complainant on 29 January 2015 following the complainant’s emergency call to 000. These calls were recorded at 13:29 (14 seconds), 14:00 (43 seconds), 14:02 (1 second), 14:03 (2 seconds), 14:04 (1 second), 14:05 (1 second) and then at 18:05 (205 seconds). No mention was made of these calls by the complainant in her evidence in chief. She never mentioned to police while she was in their presence that there was phone contact with Hanlon. However, a few days later she sent an email to a police officer forwarding the content of text messages from Hanlon to her.

Hanlon further submits that the telephone records demonstrate another inconsistency. The complainant gave evidence that on 2 February 2016 Hanlon kept sending her threatening messages and bombarding her with calls all day, which she was trying to avoid, until she spoke to him at 5:00 pm. Yet, when she was confronted during cross-examination with the telephone records which showed that she was the one ringing him at 10:18 am, 10:24 am, 10:27 am and then at 11:16 am for a call that lasted for 39 minutes, the complainant resorted to what senior counsel for Hanlon termed her ‘fall-back position’, namely, that she rang him because she was scared of him. Hanlon submits that this evidence does not sit well with the complainant’s earlier assertion that she was trying to avoid him.

It is again instructive to view the complainant’s evidence in context. In her evidence in chief, the complainant said the following:

Q:Over this period generally, say January 2015, were there calls from the accused to you on your phone?
A:Yes.

Q: Did you also call him on his phone?
A: Yes.
Q:I’m going to then ask you to put your mind a couple of days forward, Monday, 2 February 2015, were there calls and texts on this day from the accused to you?
A:Yes.

Q:       Did you answer a call at about 5 pm?
A:       Yes.
Q:       And was it the accused?
A:       Yes.
Q:What did he say, do you remember that call?
A:I don’t remember exactly what he said, sorry.
Q:Without being able to remember the exact words spoken, what was the call about?
A:I do remember, sorry, I do remember. He wanted me to give him access to the garage so he could get the trailer and he said, ‘Regardless of whether you do or you don’t’, he goes, ‘I’m still going to go in there and grab it and this time you’re going to get worse.’

…
Q:What did you take that to mean, ‘This time you’re going to get it worse’?
A:That he would hurt me again.

In cross-examination, the complainant gave the following evidence:

Q:You gave evidence last week that on 2 February there were a number of calls and texts from Mr Hanlon to you and that at 5 pm on the 2nd you had answered a call from him where you say he threatened you. Do you remember that?
A:Yes.
…
Q:Prior to 5 pm you’d been ignoring his attempts to contact you, do you agree with that?
A:Yes.
Q:So it wasn’t until 5 pm that you finally spoke to him on that day is it?
A:Yes.

Q:       And you say he called you and he threatened you, is that right?
A:       Yes.
Q:       That’s not true is it, …?
A:       Yes, it is true.

After the complainant was taken to the telephone records of the calls at 10:18 am, 10:24 am, 10:27 am and 11:16 am the following exchange occurred:

Q:Do you agree that you made those calls that day to Mr Hanlon’s phone?
A:Yes.
Q:So it’s not true that he was harassing you all day and you were ignoring his calls. You were actually ringing him throughout the course of the day weren’t you?
A:Those messages — yes, he did. What … I had made those phone calls to Craig. I’m not going to deny that. But the fact that the messages did occur on my — I may have said the incorrect thing of not being in contact with Craig that day until I received — until that 5 pm that afternoon, but the messages did occur as I stated earlier. But there was phone contact with him as the records show but I don’t remember what the phone conversations were about.
Q:You just said before that you’d ignored his attempts to contact you until 5 pm when you finally answered a call?
A:I may have been incorrect saying that.
Q:But you’d actually been calling him at least four answered calls prior to 5 pm?
A:Because I was scared.

Q:       You were calling him because you were scared?
A:       Yeah, yeah.
Q:       That’s not the truth is it, …?
A:       Yes, it is the truth.
Q:You were trying to paint a picture to police that he had been harassing you, and it’s just not true is it?
A:No, you’re incorrect.
Q:Is this another one of the lies that you’ve made up?
A:No. I was in phone — I was in contact with Craig. I’m not saying — I was still in love with Craig at the time even though what happened, happened, but I’m not going to deny that I wasn’t in love with him still. I still was.
Q:… when Mr Hanlon moved out of the house he had actually left property there that included his clothes, is that correct?
A:That’s correct.
Q:And you put that clothing in bags and in suitcases and put them in the garage, do you agree with that?
A: In suitcases and bags.
...
Q:As of 29 January 2015 those bags were still in your garage weren’t they? Isn’t that what you told the police?
A:If that’s what I said to police then that would be correct.
Q:You don’t disagree with that?
A:No.
Q:Is it the case that you’d refused to give him that property back?
A:No, it wasn’t. I did not refuse. I packed his stuff for him, that’s —why would his stuff be packed if I refused to give it back to him? I wouldn’t have packed it for him.

I consider that it was open to the jury to accept that the post-incident contact, that on 29 January 2015 and thereafter, was an example of the protracted, emotionally-charged communications that continued between Hanlon and the complainant in the context of the dissolution of a marriage. So much is apparent from the evidence.

(3) Evidence of mistaken identity – the man with the black Vespa

Hanlon submits that any jury acting reasonably must have had a reasonable doubt that it was him who attended at the complainant’s home on 29 January 2015 given the unchallenged evidence from neighbours that there was a man on a black Vespa who left the driveway of the complainant’s unit about the relevant time on that day.

Evidence was given by Aaryn Gibson, one of the complainant’s neighbours, that from the time when Hanlon and the complainant started living at their unit in November 2014 he could hear a lot of arguing, banging on the door, screaming and the like. He said it was ‘pretty aggressive stuff’ and ‘sounded like it could have been pretty serious’. He never met either the male or the female occupants and did not know their names.

He connected the male with a black Vespa. He had seen a black Vespa at the complainant’s unit on multiple occasions, and had associated its presence with sounds of an argument. He would look out the window to see what was going on when there was noise and would ‘usually’ see the black Vespa. He said: ‘I never really paid attention to it other than that’. On occasions he had seen the man with the black Vespa knock on the door of the complainant’s unit and if the door was not answered he would drive away. Other times he walked into the complainant’s unit. On that basis Gibson assumed the man with the black Vespa resided at the complainant’s unit. He gave evidence that he arrived home on 29 January 2015 and saw the black Vespa coming out of the driveway and ‘then it was all quiet and then there was all the police cars and that out the front I noticed’. He said the police arrived ‘not long after I got home’. He saw the complainant leave with the police or in the ambulance and ‘she looked physically weak like she was sick or something like that’.

The complainant conceded that Hanlon had never been associated with a black Vespa. She was never asked whether she was assaulted by a man who rode a black Vespa or had arguments with a man with a black Vespa. The informant could not find a black Vespa. He made extensive inquiries including speaking ‘directly with all the [other] neighbours, none of whom knew about a black Vespa’ and he was ‘unable to find anyone with a black Vespa’ and could make no connection between a black Vespa and Hanlon.

Mr Gibson also gave evidence of observing a man sitting in the driver’s seat of a green Saab car outside the front of the complainant’s unit. He had a hat or cap pulled over his eyes and he appeared to be waiting. He said that if he saw the male in the Saab car in the afternoon he would also hear an argument that afternoon or night. The complainant was not asked any questions about the green Saab or who drove it.

Faye Gibson, also a neighbour, gave evidence that from November 2014 she often heard a number of ‘very aggressive ... very violent arguments’ between the complainant and a man who was often coming and going to the unit. She came to know that the woman was called ‘Rita’ because she heard the male call her ‘Rita’. The arguments occurred ‘sometimes once a month, sometimes once a week, it varied’. She gave evidence in particular of one argument late in the year before Christmas 2015 in which the complainant pleaded with a male not to take her car and the male said: ‘You owe me money.’ The complainant then said: ‘The car, the car, that’s all I’ve got’. The complainant was not questioned about this argument.

Ms Gibson never actually saw the male and female arguing and she did not know either of them. She had seen the police at the block of units about three or four times. She could not be sure that the police were at the complainant’s unit at those times or others in the block of units. She was not home when the door to the complainant’s unit was broken on 29 January 2015.

The position taken by the defence in relation to this evidence was far from clear at trial. There was an associated lack of clarity about the general defence case. Did Hanlon seek to assert as his defence that an unidentified male forced his way through the door to the complainant’s unit and assaulted the complainant (the defence of mistaken identity) or that the complainant had fabricated the entire second incident (the fabrication defence)? At times in the trial, counsel for Hanlon appeared to assert the defence of mistaken identity, and relied upon the evidence of the man with the black Vespa for that purpose, and at other times, appeared to assert the fabrication defence. The judge sought on a number of occasions to clarify with counsel which defence was being relied upon.

In her closing address to the jury, defence counsel appeared to embrace the mistaken identity defence and emphasised the presence of the black Vespa and the evidence of the complainant’s neighbours hearing arguments between the complainant and an unidentified male:

But none of the neighbours actually say that the male they’re talking about is Craig Hanlon. There’s no identification of him by them. There’s no description given. None of them even see him. They hear arguing but there’s no evidence apart from what [the complainant] says, that it’s actually Craig Hanlon on those occasions at her house. And isn’t the neighbours’ evidence also, entirely consistent with another male being in [the complainant’s] house during this time? What about the black Vespa?
...
Think about what Aaryn Gibson said about the black Vespa coming and going from the address. He sees the man come to the address on the black Vespa on more than one occasion. And you might recall he gave evidence that sometimes that male would knock on the door and leave. Sometimes the male would go in. So it’s a male associated with the address, you’re not getting it wrong. The male in the Vespa is turning up at [the complainant’s] address.
He also says, that he sees the male on the Vespa and then he would hear arguing. So there’s also an association between the male and the Vespa and the fights that were going on at the house. And you might think, a black Vespa is also a bit specific. You’re not going to mistake — it’s not like a Commodore and a Ford or whatever, you know, I wasn’t sure what it was but it was a sedan? This is a Vespa. There is absolutely no evidence that Mr Hanlon has ever been associated with a Vespa. Even [the complainant] says herself, she’s never known him to be associated with one and she’s never seen him riding one.
The informant specifically investigated whether there was a connection between a Vespa, a black Vespa and Mr Hanlon and there isn’t one. If Craig Hanlon is not the male on the Vespa then clearly somebody else is visiting [the complainant] at this address in the time that we’re talking about November to January when Mr Hanlon had moved out.
And Aaryn Gibson says the male on the Vespa is the male that was having arguments with the female. So if it’s not Craig Hanlon on the Vespa then there is another male attending the address who is having fights with [the complainant]. And more importantly and probably most importantly, Aaryn Gibson says that this man on this Vespa was leaving the address on 29 January at the time that [the complainant] claims that Mr Hanlon was there assaulting her.
You heard the 000 call that was played and you would have also heard that [the complainant] said in response to a question from the call operator, something along the lines of what vehicle did he leave in or how did he leave or did you see him leave, and she says, ‘In a white Corolla sedan.’ Not a black Vespa. Very different to a black Vespa, you can’t get those two things mixed up. Perhaps another lie. It’s very different to what Aaryn Gibson sees, the black Vespa leaving the address.

At the commencement of the second day of the judge’s charge, her Honour made remarks consistent with that address:

The real issue in this trial, as you are no doubt very aware, is whether the accused man committed the acts which have been alleged. It is not suggested by the defence that the attacks did not happen, the defence of the accused to all of the charges is, ‘It wasn’t me.’

During a break in the charge, defence counsel took exception to the judge’s statement about the defence position and indicated that Hanlon relied on the fabrication defence; that the complainant was ‘lying about the whole thing’:

Just one issue in relation to the start when Your Honour was discussing the real issue between the parties. … I understood Your Honour said that it wasn’t an issue — that I didn’t take issue that it didn’t happen but that it wasn’t him? … I just don’t want the jury to think that I concede that on that occasion [the first incident] she was held in the garage, but it was some other mystery person. And then on the 29th those things happened but it wasn’t me? I’m calling you a liar, across the board, it’s not me. But it’s also — by saying it’s not me, I’m not saying it did actually happen … So I’m not saying that yes, someone was at her house on those two occasions and doing those things that she said they did but it wasn’t Mr Hanlon. I’m saying she’s lying about those things … and it wasn’t Mr Hanlon. Yes, she didn’t have injuries, she just claimed she did, assessed whether they actually happened. I’ve challenged on the injuries, I’ve challenged her on her account and the dates and all that sort of stuff. … It’s that, I say that she’s lying about the whole thing.

The judge then proposed the following re-direction to defence counsel to clarify that there was no concession by the defence that either the first or the second incident had actually occurred:

HER HONOUR: All right, well just tell me if this re-direction will appropriately reflect your case. [Defence counsel] has not conceded anything at all. Including that either of the episodes of injury happened. So the defence is not just saying it wasn’t the accused who did these alleged things. The defence is that [the complainant] is lying that anything happened to her at all on either of these days. And she did not get injured on either day. Does that make it clear?
[DEFENCE COUNSEL]: I think so.

Then, before giving the re-direction, the judge checked with defence counsel about a slightly modified version, to clarify that the defence relied on the fabrication defence not the mistaken identity defence. Defence counsel confirmed she was content with the modified re-direction. Her Honour then gave the following re-direction in the terms discussed:

Now members of the jury I just want to give you a re-direction. Apparently, I misstated the defence’s position in this case when I said to you this morning that the real issue is whether it was the accused who did the alleged acts on each of the two dates of offending. The accused, according to his counsel,

… not only denies that he did these things, but says that [the complainant] is lying in saying that anything happened to her on either of the dates in question, and is lying about having been injured on either of those dates. You will recall that [defence counsel], and I have already referred to this, said ‘just compare the extent of her injuries with what she claims that the accused did to her’.

Later in her charge, the judge said the following about the evidence of the man on the black Vespa in the context of the fabrication defence counsel was relying upon:

this is a comment by me. [Defence counsel] seemed to make something of the mysterious black Vespa, but as I have said in my re-direction, the case of the defence is that nothing happened, that [the complainant] has made it all up. So, I do not know, it is up to you what, if anything, you make of the black Vespa. Honest witnesses can be mistaken. It is a matter for you. But the prosecution as I told you yesterday, do not have to prove that the accused had a black Vespa. They have to prove the elements of the offence.

Defence counsel then raised an exception to the comment that honest witnesses can be mistaken when it had not been suggested that Aaryn Gibson had been mistaken. The judge queried where the reliance on the evidence about the black Vespa fitted in the context of a defence based on claiming that the complainant was ‘lying about the whole thing’:

[DEFENCE COUNSEL]: Your Honour in commenting about what I had said about — made the comment that I seemed to make something of the black Vespa, and that was all you said, and then a comment that honest witnesses can also be mistaken. There’s never any suggestion in this trial that Aaryn Gibson’s evidence is mistaken in any way about the Vespa. Your Honour’s only said that comment in relation to his evidence and with reference to the black Vespa. So I take objection to that classification that he as a witness could be mistaken in relation to whether he saw a black Vespa. It’s never had any issue …
HER HONOUR: But how does the black Vespa fit in, in the light of you saying nothing happened on that day? I just don’t understand.
[DEFENCE COUNSEL]: Because I’ve argued to them that if Aaryn Gibson is seeing this male coming and going on occasions associated with the arguing, and they accept that male is not my client, then there is another male coming to the address and arguing with [the complainant] on occasions. So he doesn’t just see that black Vespa on 29 January; he says he sees that black Vespa more than once and associated with the arguing at the address. The Crown are saying that my client is that person doing that every time, that he is the person coming to the address, and the evidence of Aaryn Gibson, if they accept that we are not the person on the black Vespa, that is evidence that they can use then to assess whether we are the person coming on those occasions.
So there’s the other aspect of it with the white Corolla versus the black Vespa leaving the address on that occasion. So the suggestion that Aaryn Gibson can be honest and mistaken I think is unfair to the defence case. And I know that Your Honour flagged it as a comment from yourself, but it’s one isolated comment then one witness that I’m relying on in relation to contradicting the account of the complainant might be mistaken although he could be honest, I think is unfair.
HER HONOUR: I still am troubled as to how that is relevant to the offending if in fact the defence position is that it didn’t happen.
[DEFENCE COUNSEL]: Because it’s a credit point in relation to the complainant, and the Crown case is that it’s my client going to that address every time that they hear arguing. They say that you can rely on the Gibsons’ evidence to say that when they hear arguing you can infer that’s my client there arguing with [the complainant]. So it’s not just relevant to the 29 January complaint on a credibility issue in relation to the white Corolla versus the black Vespa, but it’s also the suggestion of the misconduct evidence, how they assess the misconduct evidence. … I suppose the biggest issue I have is that the suggestion that Aaryn Gibson could be mistaken, honest but mistaken is an unfair comment given that nobody has taken any issue with his evidence, that he is mistaken on any of the things that he’s said. So it may be that even if Your Honour’s prepared to correct that comment, that would be sufficient. They can make what they want of my arguments about the black Vespa.

During an exchange with the prosecutor on whether a re-direction should be given, the judge indicated the defence position on the black Vespa was ‘very puzzling’ and remarked:

I thought initially that [defence counsel] was saying ‘Look, the perpetrator of this offence or offences on 29 January, I ask you to infer, was the man on the black Vespa who’d been seen before at the house’. But contrary to what I had understood, [defence counsel] says ‘No, we’re saying nothing happened’. … So at best the black Vespa can be relevant to the uncharged acts, which do not need to be proven to any particular standard for the jury to be relying on them. And that’s what the case law says.

The judge then sought to clarify with defence counsel precisely what was the defence case:

HER HONOUR: … it’s not the defence case that the person on the black Vespa perpetrated any offences on 29 January?
[DEFENCE COUNSEL]: I think I need to be a bit clearer about my position …
HER HONOUR: Oh no, no, I’ve given the redirection …
[DEFENCE COUNSEL]: I don’t think Your Honour — I’m not saying that — My client wasn’t there. I don’t know what the person on the black Vespa was doing.
HER HONOUR: Hang on, hang on, because your position as enunciated to me and in accordance with the redirection that I gave, with your approval, was that not only do you say that your client wasn’t the perpetrator, but nothing happened on either of the dates alleged. That’s the direction that I gave — redirection, with your approval. … .
[DEFENCE COUNSEL]: I can’t say what happened at the address because he wasn’t there. The case is he wasn’t there. I’ve asked the jury to view the lack of injuries and things like that and said to them ‘She’s lying about these things’. So I’m saying to them ‘You’d have serious doubts that these things occurred’. But I can’t put it that they didn’t occur because we weren’t there watching her not — that not happen. I think that’s where the confusion is.

Defence counsel conceded that the judge had given her two opportunities to comment on the proposed re-direction, and on both occasions defence counsel had approved the proposed direction. After some discussion with the judge, defence counsel indicated that she did not seek the judge to say anything further about the relevance of the black Vespa evidence, and merely sought a re-direction about whether Mr Gibson was mistaken. With the agreement of both counsel, the judge then made the following re-direction:

Just before you went out I referred to Aaryn Gibson’s observation that a male on a black Vespa left the units shortly before police arrived on 29 January 2015.
I made a comment that an honest witness can be mistaken. That was a comment by me, it’s not a direction of law, so you are not bound by it. Neither counsel suggested that Aaryn Gibson was mistaken.

It appears that the defence position straddled both the mistaken identity defence and the fabrication defence and was to the effect that, relevantly, because Hanlon was not present at the second incident, he could not say what happened; that is, he could not say whether someone else injured the complainant or whether the complainant was lying and the second incident never happened at all. This middle defence position was emphasised in this Court.

The Crown submits that, despite the evidence from Mr Gibson about a black Vespa, this did not preclude the jury from accepting that the second incident occurred and that it was Hanlon who committed the relevant offences. I agree.

The evidence about the black Vespa was given by one witness and the informant was not able to confirm the evidence despite considerable inquiries. In my view, the probative value of the evidence was weak, particularly in a context in which the unit in which the complainant lived was in a block of four units with a shared driveway. As mentioned, the complainant was never asked whether it was the man with the black Vespa who assaulted her or, for that matter, had supplied her with drugs. Mr Gibson had not met either the complainant or Hanlon, had no knowledge of their relationship, history, or circumstances, and made assumptions about connections based on casual observations. It is important to recall that, in this context, it is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard but rather that the evidence must preclude satisfaction to the relevant standard. Furthermore, when defence counsel asked the judge to re-direct the jury with respect to her comment about honest but mistaken witnesses, she did so. The judge made it plain that it had not been suggested that Mr Gibson was mistaken. It remained as one piece of the evidence to be taken into account.

(4) Other inconsistencies

Hanlon also relies, to a lesser extent, upon some other factors which he submits revealed difficulties with the complainant’s evidence.

(i) Medical evidence

Hanlon submits that the complainant’s account of what Hanlon did to her on 29 January 2015 is inconsistent with the medical evidence. The records of Dr Tan, who examined the complainant on 2 February 2015, is that there was no wound on her skull that was visible; she had discomfort with left neck lateral flexion but there was no tenderness on her cervical spine. The statement of the ambulance paramedic, read to the jury, was that his examination of the complainant showed her to be quite anxious but she did not have obvious injuries.

The Crown submits, and I agree, that the absence of visible injuries on the complainant left it reasonably open to the jury to find that a common assault occurred, and not a more serious injury charge. Hanlon accepts that this may explain the jury’s verdict of not guilty on charges 7, 8 and 10.

(ii) The pink cap

Hanlon submits that the complainant’s evidence did not account for the presence of a pink cap with ‘Nixon’ emblazoned on it that was found by police on their attendance at the complainant’s unit on 29 January 2015. The complainant said it was not her cap, that she did not know if Hanlon was wearing a cap on 29 January 2015, and that she had not noticed the cap.

It was never established to whom the pink cap belonged or how long it had been in the complainant’s unit. The evidence was of little significance. It was not the complainant’s evidence that no one other than Hanlon had ever visited her unit.

Overall, in my view, while the jury might have arrived at the conclusion that it had a reasonable doubt whether Hanlon was guilty of aggravated burglary (charge 6) and common assault (charge 9) on 29 January 2015, there was nothing that necessitated it arriving at that view. There was no particular element, nor any combination of elements, that meant that the jury must have had a reasonable doubt. The combination of matters upon which Hanlon relies did not take this question any further because ultimately, as the judge understood, the heart of the case turned on the complainant’s credibility.[32] If the complainant’s evidence was accepted, the Crown would succeed. All of the matters that Hanlon raises are fundamentally attacks on the complainant’s credit. The verdicts on charges 6 and 9 demonstrate that the jury rejected those attacks and, in my view, it was open for it to do so. I consider that a jury, properly instructed, acting reasonably, could have been satisfied of Hanlon’s guilt on charges 6 and 9 beyond reasonable doubt. I consider that here the jury was properly instructed and acted reasonably in arriving at the verdicts.

[32]See [57] above.

I reject ground 2.

Conclusions

I would refuse leave to appeal with respect to ground 1.

I would grant leave to appeal with respect to ground 2, but dismiss the appeal.

KYROU JA:

I agree with Tate JA.

BEALE AJA:

I have had the considerable benefit of reading in draft the judgment of Tate JA. I agree with her in relation to Ground 1. However, I have reached a different conclusion in relation to Ground 2. I am satisfied that a reasonable jury must have entertained a reasonable doubt about the applicant’s guilt.

Because of Tate JA’s extensive discussion of the matters relevant to the assessment of the complainant’s credibility, I can be brief. To my mind, the unchallenged evidence of Aaryn Gibson about the man on the black Vespa should have constituted a ‘tipping point’ for the jury.

Relevantly, Gibson was asked the following questions and gave the following answers in examination in chief:

Q: As at November, December, sort of January 2014/2015, did you live at No.15 Aberdeen Street, Reservoir?
A: Yes.

Q: And have you lived there with your family since 1998?
A: Yes.
Q: Did you used to hear a bit of noise coming from the unit next door being 3/16 Aberdeen Street, Reservoir?

A: Yes.
Q: Could you just describe what you used to hear to the members of the jury, please?
A: There was a lot of arguing, banging on the door, screaming, things like that.
Q: Who lived in that unit?
A: From memory it was a male and a female that lived in there.

…
Q: The male, did you see him come on any particular type of transport at a different time?
A: Yes. Like, a Vespa motorbike kind of thing.
Q: How often do you say you saw this black Vespa?
A: Usually every time there was some noise being made and I looked out the window to see what was going on it was there. I never really paid attention to it other than that.
Q: You connect the black Vespa with the male?
A: Yep.

…
Q: Was there a particular incident at the end of January?
A: Yeah, when there was a few police cars and an ambulance at the unit.
Q: I'll just ask you about---

HER HONOUR: ---This is January which year?
A: 2015.
Q: Thanks, Your Honour. (To witness) Did you arrive home on this incident to see police cars there and so on?
A: I arrived home just before that and then the police cars and that got there not long after I got home.
Q: Did you hear - sorry, I cut you off. You go on?
A: No, that was it.

Q:Did you hear anything happening before the police arrived, like, when you got home could you hear anything?
A: When I was driving home I seen that Vespa come out of the driveway and then it was all quiet and then there was all the police cars and that out the front that I noticed.

In cross examination, Gibson was asked, relevantly, the following questions and gave the following answers:

Q: The black Vespa, you gave evidence that you saw the male coming to the address on the black Vespa, is that correct?

A: Yep.
Q: And you'd see it parked outside the address, is that right?

A: Yes.
Q: Are there times when you'd see that male ride up to the door, knock on it and if the door wasn't answered he would then ride away on the Vespa?

A: Yes.
Q: But then other times he would attend the address and go into the address, is that right?

A:       Yes.
Q:       And from that you assumed that he was residing at the address?
A:       Yes.
…
Q: The incident that you just described that occurred in January where the police and the ambulance attend, you saw the black Vespa leaving the address as you were coming home, is that correct?

A:       Yes.
Q:       You saw it coming out of the driveway?
A:       Yes.
Q:       And it wasn't long after that that the police then arrived?
A:       Yes.

As Tate JA observes at [78], the complainant conceded that the applicant had never been associated with a black Vespa. The complainant told the 000 operator on 29 January 2015 that, after the applicant assaulted her, she saw him drive off in a white Corolla.

Tate JA says at [95] ‘the probative value of the evidence [about the man on the black Vespa] was weak, particularly in a context in which the unit in which the complainant lived was in a block of four units with a shared driveway’. But this ignores the most important aspect of Gibson’s account, namely, that on multiple occasions he observed the man on the black Vespa knocking on the door of the complainant’s unit and, on other occasions, he observed him actually entering the complainant’s unit. To my mind, Gibson’s evidence about the man on the black Vespa, considered in combination with the complainant’s credibility issues — including the inconsistencies between her original account and the telephone records, her admitted lies in her police statement, her admitted perjury at the committal and her ‘ice’ use — gives rise to a reasonable possibility which the jury should not have rejected, namely, that the perpetrator of the offences was the man on the black Vespa that Gibson saw coming out of the driveway of the units on 29 January 2015.

I would grant leave to appeal in relation to Ground 2, allow the appeal, set aside the convictions and acquit the applicant in respect of Charges 6 and 9.

- - -

Charge	Offence	Maximum penalty	Sentence	Cumulation
6	Aggravated burglary	25 years’ imprisonment	3 years’ imprisonment	Base
9	Common law assault	5 years’ imprisonment	12 months’ imprisonment	6 months
Total effective sentence		3 years and 6 months’ imprisonment
Non-parole period		2 years
Pre-sentence detention		166 days

[2018] VSCA 81

28 March 2018