Le v The Queen - [2020] NSWCCA 238

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Le v R [2020] NSWCCA 238
Hearing dates: 26 August 2020
Decision date: 23 September 2020
Before: Hoeben CJ at CL at [1];
Davies J at [110];
Adamson J at [134]
Decision:
(1) Grant leave to appeal.
(2) Appeal dismissed.
(3) Order, until further order, on the ground in s 8(1)(e) of the Court Suppression and Non-publication Orders Act 2010 (NSW), that the complainant be referred to by the pseudonym, S, and not otherwise identified.

Catchwords:
CRIMINAL LAW – conviction appeal – found guilty by a jury of causing grievous bodily harm while reckless as to the causing of actual bodily harm by way of stomping or kicking the victim’s hip – acquitted of an assault occasioning actual bodily harm – sentenced to imprisonment for 3 years and 6 months with a non-parole period of 1 year and 9 months – appeal asserting that verdict of jury unreasonable or cannot be supported having regard to evidence – Crown case relied on a single witness – challenge to reliability of that witness – apparent discrepancy between initial complaint and texts sent to applicant – failure to adequately explain discrepancy – problems with complaint evidence – unexplained failure on the part of Crown to call an important witness – medical evidence supported claim – availability of reasonable alternate hypothesis explaining injury – leave to appeal granted but appeal dismissed.

Legislation Cited:
Court Suppression and Non-publication Orders Act 2010 (NSW) – s 8(1)(e)
Crimes Act 1900 (NSW) – s 35(2)
Criminal Appeal Act 1912 (NSW) – s 5(1)(b)

Cases Cited:
Chidiac v The Queen (No 2) [2016] NSWCCA 120
Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34
Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45
Fennell v The Queen [2019] HCA 37
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Mahmood v State of Western Australia (2008) 232 CLR 397; [2008] HCA 1
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Pell v The Queen [2020] HCA 12
RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Category: Principal judgment
Parties: David Ahn Le – Applicant
Regina – Respondent Crown
Representation:
Counsel:
H Dhanji SC/K Edwards – Applicant
B Hatfield – Respondent Crown
Solicitors:
Armstrong Legal – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2017/340688
Publication restriction: Non-publication of any information or material that may lead to the identification of the complainant (Court Suppression and Non-publication Orders Act 2010 (NSW), s 8)
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

07 February 2020

Before:

Yehia SC DCJ

File Number(s):

2017/340688

JUDGMENT

HOEBEN CJ at CL:

Overview

The applicant stood trial before her Honour Judge Yehia SC and a jury in the District Court at Sydney. The trial commenced on 11 November 2019. The applicant entered pleas of not guilty to the three counts on the indictment (Count 3 was an alternative count).

The trial concerned alleged violent acts committed against the complainant, S, with whom the applicant was in a domestic relationship between 2016 and 2017.

Count 1 - alleged an assault occasioning actual bodily harm by slapping the complainant's face and causing her bruising. The incident was said to have occurred between 6 and 10 December 2016, three days prior to the complainant travelling to India.

Count 2 - alleged the causing of grievous bodily harm to the complainant and being reckless as to causing actual bodily harm by way of stomping or kicking the complainant’s hip and fracturing her femur, in an incident between 9 and 15 October 2017.

Count 3 was an alternative charge to Count 2 of assault occasioning actual bodily harm in the same incident.

On 19 November 2019, the jury returned verdicts of not guilty on Count 1 and guilty on Count 2. No verdict was therefore required for Count 3.
On 7 February 2020 the applicant was sentenced to imprisonment for 3 years and 6 months with a non-parole period of 1 year and 9 months, commencing 7 February 2020.
I agree with Adamson J for the reasons given by her that an order should be made pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) to protect the complainant’s identity. I have used the same identification of the complainant, i.e. “S”, as Adamson J.
I have had the advantage of reading the judgment of Adamson J on the application for leave to appeal. Regrettably, I have reached a different conclusion to her Honour. My reasons for doing so are as follows.

Overview of the evidence at trial

The complainant and the applicant were in an intimate relationship from about July 2016 to 23 October 2017. The applicant was married when they first met but later separated from his wife. The applicant rented the complainant a unit at Blues Point Tower. The couple effectively lived together for most of their relationship, first at Blues Point Tower and from February 2017 at the applicant’s unit in York Street. The complainant also rented a small room at Ashfield for a period. It was common ground that it was a volatile relationship involving many breakups and reunions. It was also common ground that the couple had serious drug and alcohol problems when they were together.
Count 1 – The first incident was alleged to have occurred in early December 2016 just before the complainant travelled to India. The complainant alleged that the applicant slapped her across the face and body a number of times while they were arguing at home. She said that the assault caused bruising down her face and onto her neck and chest. The complainant had difficulty in giving a coherent account of the incident in cross-examination. At one point, she said:

“Well, I meant we were drinking. It’s a blurry memory. However, I was in bed with David woke up with the injury. He – he knew that he did it and obviously I knew that he did it ... I can remember a slap on the face.” (T37.41)

Defence counsel suggested in cross-examination that the bruising may have occurred in the context of consensual rough sex. The complainant agreed that the couple had consensual rough sex but denied consenting to the infliction of injury. She changed her account in cross-examination when challenged with text messages about rough sex which she had sent to the applicant. The complainant also agreed that she told a friend, Laura Bramble, that she had received bruises from rough sex with the applicant. As indicated above, the applicant was acquitted of that count.
Count 2 – The Crown alleged that the second assault occurred during a lengthy argument on the evening of 10 October 2017 at the York Street apartment. The complainant said that the applicant had consumed cocaine and she had been drinking alcohol and had had a “few lines” of cocaine (T56.10). She said that they argued because she had been talking too much after sex and the applicant hit her hard on the right eye causing a large black eye. While the complainant was on the floor, she said that the applicant kicked or stepped on her left hip causing her immediate excruciating pain. According to the complainant, the applicant came to see her the next day with his friend, Steven Low, and apologised. She said that the applicant showed Mr Low her bruised face and leg. On 24 October, in the early hours of the morning, the complainant called police and said that she had been assaulted by the applicant about two weeks earlier and was scared that she was going to be assaulted again. She showed police a photo on her phone of a bruise on her hip. However, she declined to give a statement. On 30 October, the complainant attended hospital and her femur was found to be fractured. She underwent surgery on 1 November 2017. On 9 November 2017, the complainant made a video recorded statement for the police which was played at trial (MFI 4).
There was no issue that the hip injury amounted to grievous bodily harm. The complainant denied that she had fallen onto a hard surface while drunk. Expert medical evidence was called by the Crown and defence. The expert witnesses agreed that the injury was consistent with the complainant’s account but did not exclude the possibility that the injury was accidental, particularly if the complainant had fallen from stairs while drunk. The Crown also adduced evidence of complaints to various witnesses and context evidence of a series of uncharged acts described as “a cycle of abuse” (Crown closing address 15.11.2019 at 4.43). The defence adduced evidence that the applicant was suffering from a leg infection at the time of the second count and was using crutches during that time.
The Crown case commenced with the complainant and comprised the video recording of her statement, together with oral evidence. The complainant’s aunt, Vanessa, gave complaint evidence, as well as evidence of having assisted the complainant at a number of medical consultations relating to her hip injury.
Laura Bramble (statement read) was a work colleague of the complainant to whom she had made some complaint about the applicant. There was expert medical evidence from Dr Eli Olschewski, a specialist orthopaedic surgeon who treated the complainant in relation to her fractured femur, and Dr Fernando Pisani who had given an expert opinion after reviewing the statement of Dr Olschewski and relevant medical records of the complainant.
There was evidence from the two police officers, who attended on the complainant on 24 October 2017, (when the complainant called “000”. Constable Nair (statement read) detailed a number of statements made by the complainant at the time police attended. Constable Yoo, who was the officer-in-charge of the investigation, gave oral evidence in relation to the initial attendance and the investigation generally.
A statement by the complainant’s father was read. This contained complaint evidence as well as an exchange of various messages with the applicant (Exhibit J).
In the defence case, Professor Duflou, a forensic pathologist, was called in relation to possible causes of the hip fracture.
A statement was read from Hai Le (unrelated), a friend and colleague of the applicant, who gave evidence about the applicant having suffered an injury from an infected tattoo and his use of crutches from August to October 2017. An affidavit from a pharmacist (Jay Koovargee) as to the hire of crutches was read. Notes from the Royal North Shore Hospital were produced which confirmed the applicant’s attendance.
The parties agreed that the following chronology set out the dates of key events.

Date

Event

Reference

March 2016

Complainant met the applicant.

T6.

July/August 2016

After the complainant returned from a trip to Europe the applicant paid the rent for an apartment in Blues Point Tower.

T7.

6 – 12 December 2016

Complainant alleged assault (AOABH) subject of Count 1 occurred 3 days before she went to India when the applicant slapped her.

MFI #3-4 Q36-37; 53-72.

9 -17 December 2017

Complainant went to India.

Ex F.

February/March 2017

Complainant began living mainly with the applicant in his York street apartment.

MFI #3-4 Q9.

10/10/17

Alleged incident Count 2 during argument at York Street apartment.

MFI #3-4 Q357-475.

11/10/17

Following day complainant said the applicant and Steve Low came to the Bondi apartment.

MFI #3-4 Q488-496.

11-12/10/17

Series of messages between complainant and Steve Low.

Ex D.

15-17 or 21-22 October 2017

Complainant went for overnight trip with her aunt, Vanessa, to Southwest Rocks and back.

Vanessa (T101)/Ex J p17.

24/10/17

Police attend York Street apartment 02:45am following triple-zero call by the complainant. Complainant declined to participate in DVEC*.

Contemporaneous series of messages and call records between the complainant and applicant.

Constables Nair (T144-147) and Yoo (T149 – 152).

Ex 6.

27/10/17

Complainant contacted her aunt again, and told her she was in a lot of pain and could not walk. They attended hospital and an x-ray was taken which did not reveal anything.

Vanessa (T103-104) and Ex E.

30/10/17

Complainant attended a GP with Vanessa and was sent for a MRI. Vanessa (a radiographer by profession) could see it was a break and they went back to the GP and were referred to a specialist, Dr Olschewski.

Vanessa (T105-106).

31/10/17

Vanessa took complainant to consultation with Dr Olschewski.

T107; T125.

01/11/17

Complainant underwent surgery with Dr Olschewski.

T107; T126.

09/11/17

Complainant participated in DVEC* [1] interview with police.

MFI #3-4.

1. *DVEC = Domestic Violence Evidence in Chief

The applicant seeks leave to appeal against his conviction for Count 2 on a single ground of appeal:

The verdict of the jury is unreasonable or cannot be supported having regard to the evidence

The applicant requires leave under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) because this ground of appeal involves questions of fact.

Legal principles

The principles applying to a ground of appeal alleging that the verdict of the jury is unreasonable, or cannot be supported having regard to the evidence are well settled: M v The Queen (1994) 181 CLR 487; [1994] HCA 63 ; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 and SKA v The Queen (SKA) (2011) 243 CLR 400; [2011] HCA 13.
The relevant principles are conveniently collected in SKA at [11]-[14] as follows:

“11 ... the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ:
“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.

12 This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to “unsafe or unsatisfactory” in M is to be taken as “equivalent to the statutory formula referring to the impugned verdict as ‘unreasonable’ or such as ‘cannot be supported, having regard to the evidence’.”
13 The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:
“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.”

...
14 In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make “an independent assessment of the evidence, both as to its sufficiency and its quality”. In M, Mason CJ, Deane, Dawson and Toohey JJ stated:
“In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.”

More recently, those principles were restated in Pell v The Queen [2020] HCA 12. The High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) at [38]-[46] said:

“38   It should be understood that when the joint reasons in M v The Queen spoke of the jury’s “advantage in seeing and hearing the witnesses” as being “capable of resolving a doubt experienced by a court of criminal appeal” as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury’s assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness’ evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M were remarking upon the functional or “constitutional” demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible.
39   The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
...
43   At the commencement of their reasons the Court of Appeal majority correctly noted that the approach that an appellate court must take when addressing “the unreasonableness ground” was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M. The court must ask itself:
“whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.
44   The Court of Appeal majority went on to note that in Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) elucidated the M test in these terms:
“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.” (footnote omitted; emphasis in original)

45 As their Honours observed, to say that a jury “must have had a doubt” is another way of saying that it was “not reasonably open” to the jury to be satisfied beyond reasonable doubt of the commission of the offence. Libke did not depart from M.
46 When it came to applying the M test, their Honours’ subjective assessment, that A was a compellingly truthful witness, drove their analysis of the consistency and cogency of his evidence and the capacity of the evidence of the opportunity witnesses to engender a reasonable doubt as to his allegations. Their Honours reasoned, with respect to largely unchallenged evidence that was inconsistent with those allegations (the “solid obstacles” to conviction), that notwithstanding each obstacle it remained possible that A’s account was correct. The analysis failed to engage with whether, against this body of evidence, it was reasonably possible that A’s account was not correct, such that there was a reasonable doubt as to the applicant’s guilt.”

Applying those principles to the facts of this case, I have concluded that there are significant inconsistencies, discrepancies and inadequacies in the account of the complainant such that the jury ought to have had a reasonable doubt about the guilt of the applicant.

Overall analysis

The Crown case relied on a single witness and accordingly the case turned on her credibility and reliability. For the reasons herein set out, I have concluded that the complainant’s evidence is unreliable. This creates a difficulty for the Crown in meeting the “designedly exacting standard” of the criminal burden of proof (Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34 at [48]). To the extent that there was evidence supporting the complainant’s account, it depended on the reliability of the complainant’s account for its force. For example, the medical evidence and photograph of the bruise on the hip relied upon the complainant’s account of how she received her injury.
Complaint evidence, while not independent of a complainant, can be significant. However, in the present case, such evidence was of limited value. Almost all the complaint accounts occurred after the complaint to police, which was not only delayed but made in circumstances that cast significant doubt over the complainant’s motivations in making the complaint. This was because the alleged genesis of the first complaint, i.e. the need to complain in relation to past violence due to a present fear - was proved false, or, at least, could not be accepted. The complainant’s evidence contained fundamental inconsistencies.
Further, independent evidence that might be expected to exist and would have supported the complainant’s account was not present. For example, Steven Low, who was said to be aware of the assault and to have observed the injuries, did not give evidence. The failure of the Crown to call Mr Low was not explained. To the extent that context evidence was before the court to explain the two week delay in complaint, it was not capable of doing so in the face of the evidence which contradicted the complainant’s asserted imminent fear of the applicant at the time she called the police.
In reaching that conclusion, I have been mindful of the advantage held by the jury in seeing and hearing the evidence, particularly that of the complainant. However, the facts of this case did not preclude me from forming a doubt where the credibility of the complainant was fundamentally undermined.
As was observed by the High Court in Fennell v The Queen [2019] HCA 37 at [81] (Keifel CJ, Keane, Nettle, Gordon and Edelman JJ):

“Where a court of criminal appeal is called upon to decide whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence charged, the court must not disregard or discount either that the jury is the body entrusted with primary responsibility of determining whether the prosecution has established the accused’s guilt or that the jury has had the benefit of having seen and heard the witnesses. At the same time, however, the court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory. The court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability. ...”

For the reasons set out below, the facts of this case were such that the subjective process of evaluating demeanour did not constitute such an advantage that it was capable of overcoming the objective deficiencies in the account of the complainant.

The first complaint

The first complaint to police was made on 24 October 2017, 14 days after the alleged offence and without the complainant having sought prior medical attention. A central and consistent feature of the complainant’s account was that she called “000” on 24 October because she was in fear of the applicant and scared of his imminent return. When police arrived, the complainant said “we were arguing and he got so angry I thought he was going to bash me up again like last time. I was so scared that he was going to hit me so I called but he just left” (T146.4).
When Constable Yoo asked her “why did you call us here today?”, she said “Because I feel scared. I don’t know what to do” (T149.47). The complainant told Constable Nair on the way to the police station that the applicant had hit her and left her unable to walk four times (T144.7, T147.23). When the complainant’s father collected her from the police station she told him that she was scared that the applicant would assault her that night when he returned home (T143.45). On 31 October, the complainant told an orthopaedic surgeon that she feared she was going to be attacked and ran quickly out of her home (T126.24).
In her recorded interview of 9 November 2017, the complainant said that on the night that she called the police, the applicant went crazy during an argument. The complainant said that he was hitting his head and she thought he was going to assault her (A553-557). She said that she felt terrified and “... I have never felt more concerned for my own safety, even in my whole life” (A554). The complainant said that the applicant left “and then I was in the apartment alone and I thought he’s gunna come back so that’s when I contacted police” (A557-558).
At the trial, the complainant provided more detail. She said:

“A. There was an argument and David was very distressed. He was becoming very, very aggressive. He had hit his head on the wall and I was scared of him at that time. Very scared of him at the time. And I asked him to go to buy me a packet of cigarettes, and he went, and I called triple 0.” (T27.17)

In cross-examination, the complainant confirmed that she called “000” quickly because she was frightened that the applicant would come back and agreed that she did so to be safe in the apartment:

“Q. You told the jury earlier that Mr Le went out, and I think you said he was going for a packet of cigarettes. Is that right?
A. Yeah, I think I convinced him to go - go buy something for me from the shops, a packet of cigarettes, and that's why he left the apartment.
Q. You quickly got on the phone to triple 0?
A. Yeah.
Q. You were worried he was going to come back?
A. Yeah.” (T62.41)
“Q. You were highly anxious that he not come back.
A. I didn't know whether he would come back or whether he wouldn't come back, but I needed to leave the apartment in case he did.
Q. So you were keen to get out of there.
A. Yeah.
Q. So that you could be safe. Correct?
A. Correct.
Q. All right. Well, why was it, Ms [S], that when the emergency services turned up you were reluctant to come out of the apartment?
A. I was a mess. I was a mess, sir.” (T63.37)

This account was discredited in cross-examination where the following evidence was given:

“Q. Ms [S], I want to suggest to you that far from being concerned about Mr Le coming back to the apartment that night, you actually wanted him to come back to the apartment. What do you say to that?
A. I didn't want him to come back.
Q. You were angry that he didn't come back to the apartment.
A. I was upset that he left at first, I think. I was just upset because we were fighting.
Q. Well, why would you be upset that he left, if you sent him out to the convenience store?
A. I think I was just - it's just a lot of emotion, all different emotions. I don't recall exactly every emotion, but that is what happened.” (T64.39)
“Q. You've told us that you were worried he was coming back.
A. Correct.
Q. That's not true, is it?
A. You've completely confused me, I'm sorry.
Q. All right. Well, what I want to suggest to you, ma'am, is that when you told us earlier that you were worried he was coming back, that that is a lie. What do you say to that?
A. I disagree.” (T65.17)

Defence counsel adduced contemporaneous text messages (Exhibit 6) which revealed that the complainant was not in fear of the applicant’s return. The reality was that after the applicant left the apartment, the complainant called him repeatedly and sent him messages demanding that he return and became increasingly upset when he did not respond. The texts also made it clear that there was no need for an urgent response by police in that over two hours passed before the “000” call was made.
After unsuccessfully calling the applicant, the complainant sent the following messages:

“SMS: you have 10 minute to come home
SMS: 19 from now (it appears from the transcript and the complainant agreed in cross-examination this should read “10 from now” (T88.46)

The complainant then made six unanswered calls to the applicant (between 12:16 and 2:35am) and then sent the following messages:

“SMS: Call or it's done
SMS: Please call it's not worth it
SMS: Babe come home?
SMS: What”

The complainant made another eight unanswered calls to the applicant up to 2:41am (the approximate time of the “000” call) bringing the total unanswered calls to 14.
The complainant then wrote:

“SMS: I will kill myslrf now”

There was another unanswered call (time unknown) followed by further messages:

“SMS: The Ambulence is calli gmw
SMS: I’m going”

After another unanswered call (time unknown) the following messages were sent:

“SMS: David I am going to hospital
SMS: They keep calling
SMS: You do t want to help
SMS: I'm going with them xx”

Thereafter, the sequence of calls and messages to the applicant’s phone was as follows:

Unanswered call 5:38am.
“SMS: How can you do this”
Unanswered call.
“SMS: Can you call”
Unanswered call.
Unanswered call.
“SMS: Can you call”
Unanswered call.
“SMS: How”
Unanswered call.
Unanswered call at 8:20am.
“SMS: I have been to the police now xx”
“SMS: I am going with the police tonight”
Unanswered call.

As can be seen, the complainant continued to text and call the applicant after 5:38am and well after the report was made to police. She admitted that she had been drinking heavily on the night of the report (A548, T91.41). She said that she was “quite sober” when the police arrived (A549) but one of the attending police noticed that she appeared affected by alcohol with glassy eyes and slurred speech (T149.43).
After the text messages were adduced, it was put to the complainant that the applicant had turned his phone off after an argument, that this was the first time he had done this and that she was infuriated as a result. She responded “I don’t remember” (T90.20).
When it was put to the complainant that she wanted the applicant to come home, she at first demurred saying that she was stressed, confused and had been drinking (T91.41). Ultimately, she agreed that she wanted the applicant to come home and that he was ignoring her (T92.32). The complainant did not admit to being angry just before the “000” call at 2:45am, but said that the relationship was over and she was distressed (T92.38). In summary, the complainant was not able to reconcile her evidence that she called “000” because she was in fear of the applicant with the text messages sent to him. The complainant only faintly resisted the suggestion that she had lied in her evidence (T89.10).
The detail of the cross-examination was as follows:

“Q. Now, you said earlier today in your evidence, Ms [S], that Mr Le went out to the convenience store, you called triple 0 because you were frightened he was going to come back, remember saying that?
A. Yes.
Q. That was a lie, wasn't it?
A. Look, this is my memory.
Q. It was a lie, wasn't it? You weren't afraid of him coming back at all, were you?
A. I was worried about him coming back.
Q. You wanted him to come back, didn't you?
A. I --
Q. Didn't you, yes or no? You wanted him to come back.
A. Yes, yes please.” (T88.29)
“Q. What you said to the members of the jury earlier about being frightened or concerned that Mr Lee would come home. I suggest to you that you lied to the members of the jury, what do you say to that?
A. I was working off from what I remember. The feeling that I remember.
Q. In fact sending him to the convenience store is also a lie, isn't it?
A. That's what I remember.
Q. You'd say you've got a very unreliable memory about this matter, do you?
A. I'm not saying that.
Q. Well you see Ms [S] I want to suggest to you that you are hiding behind unreliable memory in an attempt to evade the fact that you have been caught lying to the members of this jury, what do you say to that?
A. I don't know what to say.
Q. Because there's nothing to say other than “Yes, members of the jury, I’ve lied”. That's the truth, isn't it, that you don’t want to face?
A. Okay, fine.
Q. Because there's not other explanation, is there?
A. This is what I remember, sir.
Q. Fine, you agree, you've lied?
A. Fine.
Q. I’ll take that as an agreement, should I?
A. Sure.
HER HONOUR:
Q. Do you understand what's being put to you, Ms [S]?
A. I think I do.
Q. Do you understand that you have to do your best to give evidence honestly in answer to the question? If you can’t remember something, you should say so. If you’re not sure, you should say so. You should not agree just to agree. And if you don’t understand, you say so. Do you understand that?
A. Okay. Okay.” (T89.10)

The above conclusions are supported by the fundamentally evasive answers by the complainant when the texts were put to her in cross-examination.

“Q. What I want to suggest to you is that you and Mr Le have had one of your regular verbal arguments this particular night. What do you say to that?
A. I agree.
Q. He’s left. Not to go to the convenience store, but perhaps to go to his office and sleep and ignore you? What do you say to that?
A. This is what I remember. What I say is what I remember.
Q. Are you agreeing or disagreeing with what I’m saying? Or you don’t know one way or the other?
A. I don’t know.
...
Q. What I want to suggest to you, Ms [S], is that the fact that Mr Le had his phone off absolutely infuriated you. What do you say to that?
A. I don’t remember.” (T90.1,T90.23)

The complainant was cross-examined to explain what she meant in her texts.

“Q. Then you send him a message saying "Call or it's done". What did you mean by those words?
A. The relationship. I’m sure that's what I meant.
Q. "Please call. It’s not worth it". What did you mean by that?
A. I don’t remember what I meant by it.
Q. “Babe, come home”. What did you mean by that?
A. I don’t remember what I meant by it.
Q. It’s not at all consistent with being frightened of this man, or concerned about this man coming home, is it?
A. That was my memory of it.
Q. He’s been gone for quite a while by this stage, hasn’t he? Been gone since at least 12.16am, and we're past 2.35am, aren’t we? So he’s been gone for at least 2 hours and 20 minutes, hasn’t he?
A. Sure.
Q. Can I suggest this to you, Ms [S]? When you sent the message “Babe, come home”, I suggest to you that you wanted Mr Le to come home. What do you say to that?
A. I don’t remember. I was stressed, confused, and I had been drinking, as well, that day.” (T91.19)
“Q. You wanted him to come home, didn’t you?
A. I don’t remember wanting him to come home.
Q. That’s just not true, Ms [S]. You're feigning lack of memory because you've been caught lying, what do you say to that? Sorry? You're pretending that you don't remember because you’ve been caught lying.
A. That is what I remember, what I have said.” (T92.7)
“Q. By 2.41, you’re up to about ten unanswered calls, would that be fair? First page, one, two, three, four, five. Second page, six, seven, eight, nine, by 2.41.
A. Okay.
Q. 10, to the bottom of the page. 11, 12, over on the third page. Still 2.41. 13, 14, and then the text message, “I will kill myslr if now”. And then the 15th call. Do you agree with that?
A. I agree with that.
Q. Pretty keen for him to come home, aren’t you?
A. Sure.
Q. He was ignoring you, wasn’t he?
A. Correct.
Q. That made you mad, didn’t it?
A. I don't remember feeling mad. I was distressed at the time.” (T92.23)
“Q. And that, Ms [S], is when you decided to call triple 0, isn’t it?
A. That's when I called? I can't remember what time I called.
Q. It’s somewhere shortly before 2.45. Perhaps around 2.41, or thereabouts, that’s when you decided to call triple 0, isn’t it? And make up some allegations about Mr Le? Didn’t you?
A. I disagree.
Q. You told the police, didn’t you, that you were frightened he was going to come home?
A. That is how I felt at the time, and that is what I remember.
Q. If you told the police that, that would be a lie, wouldn’t it? Given these 15 unanswered calls and various text messages? You went downstairs and you lied to the police, didn’t you?
A. I disagree.” (T93.9)
“Q. All that you’ve said to the Court against Mr Le in this matter was motivated by your anger on the night, because he had ended the relationship?
A. Absolute - absolutely not.
Q. You wanted him to come home?
A. Absolutely not, sir.
Q. You wanted him to come home and he wouldn’t. And you realised it was all over. Didn’t you?
A. No. I disagree with you.” (T93.44)

These responses under cross-examination were at best evasive and at worst false.
The text messages undercut a fundamental feature of the complainant’s account and demonstrate that the complainant had a motive to lie. The texts were a powerful example of a pattern, which emerged in the cross-examination, namely that the complainant would be caught in lies where independent evidence was available to test her account. There were further examples of this pattern to which reference will be made.

The complainant’s account in her evidence

The complainant’s evidence of being kicked or stomped

The complainant’s evidence was given by playing the recorded interview of 9 November 2017, supplemented by further oral evidence in chief and cross-examination at the trial. An examination of that evidence shows that it was internally inconsistent and confused.
In the recorded interview, the complainant provided an account of being on her knees apparently to show the applicant that she was scared (A427-435). When asked, however, she was unable to describe how or why she came to be lying on her right side (A453). On one version of the complainant’s account (a text to Laura Bramble), she fell to the ground after being punched but that was inconsistent with her account of choosing to be on her knees (T114.30). One of the few consistent features of the complainant’s evidence was that she said she was stepped on once on her left hip while she was lying on her side, something she demonstrated in the interview (A469) and confirmed in cross-examination (T56.4). This was not, however, consistent with what she told the various complaint witnesses. These contradictions were as follows.
The complainant told the police that she “couldn’t walk” for two days (A472). However, the complainant first told police that after the assault she and the applicant went back to bed (A475). When the interviewing police officer queried how they ended up back in bed “after such a massive argument” (Q476) the complainant changed her account and said she had left the apartment and took an Uber to Bondi (A476, 482-483). The complainant also described a conversation with Steven Low and the applicant the next day and twice referred to the discussion taking hours (A493, T24.45). For this account to be true, it was necessary for the complainant to be able to stand and walk for that period of time. The attempt by police to clarify the history failed (A498-501):

“Q: ... So he’s assaulted you, OK. So he’s kicked you on the hip and you said
you couldn’t walk, like...
A: I walked for two days.
Q: You can for two days, yeah...
A: Well I could, it was very painful ...to walk and I just ...
Q yep
A: ... and I couldn’t walk”

In her statement, the complainant said that she was in pain for a week and thought “I had pinched my nerve or something” (A508-510, 608). She attended a chemist and asked for treatment for a pinched nerve (A700). The obvious question raised by these answers is that if the complainant had been violently stomped on and suffered immediate and excruciating pain, which she described as “the worst pain of my life” (T23.34), she was unlikely to consider the source of the pain to have been a pinched nerve.

The black eye

The allegation was of an assault in which the complainant was first punched to the eye (A399). It was a repeated and central feature of her recorded interview (A358, 399, 412, 414). If supported, the punch and resulting black eye had the potential to be powerful evidence of guilt as such an injury would suggest a violent assault inconsistent with an accident as an explanation for the complainant’s hip injury. Apart from the evidence of the complainant, there was no evidence called to support the presence of such an injury. Moreover, the complainant gave a starkly inconsistent account of the punch in her evidence (and, as outlined below, the punch did not feature at all in most complaint accounts). In the recorded interview, the complainant said she was hit while off the bed and standing up (A401). At the trial, she said she thought she was punched in the eye while still in the bed (T22.9).
As already noted above, despite the complainant’s claim, no evidence was adduced to support a large distinctive bruise to her right eye. While the complainant said that it was a hard punch and that the bruise was “really big” (A358), no family or friend saw it. This included Vanessa who saw the complainant about three to five days after the alleged offence and was with her for several hours. The complainant did not say she took any steps to hide herself or disguise the bruise by using makeup or otherwise. The complainant claimed that Steven Low saw the bruise and black eye the date after they were said to have been inflicted, but he did not give evidence. If anything, the evidence she gave of the close inspection by Steven Low operated to rebut any suggestion that she was able to hide the black eye and that was why it was not commented on.
There was no medical evidence of facial bruising or past facial trauma. There was no complaint of a punch to the face to any of the treating doctors, including Dr Olschewski, that might have prompted a thorough medical examination (T126.14). Significantly, the complainant took several photographs of the bruise on her leg in the days following her injury. In her interview, she said she did this to show the applicant “to say, look what you did” (A530-531). However, the complainant took no such steps in relation to an apparently disfiguring bruise to her face.
The doubt surrounding the black eye is important. It gives rise to a doubt with respect to a central feature of the allegation and takes on added significance given its capacity to delineate between a violent assault (on the complainant’s version) and the possibility that the injury to the hip was occasioned by some other means such as a fall.
At this stage in the analysis of the evidence it should be noted that there is a limit to the allowances that can be made for the complainant, and for the jury’s advantage in seeing and hearing her give her evidence. Put at its highest, acceptance of the Crown case required an assumption that the complainant was doing her best to provide a truthful account but was affected by the passage of time, intoxication, trauma or some combination thereof. However, where the gravamen of an assault involves a punch and a kick, and the complainant cannot recall whether she was punched standing up or lying down, and cannot say with consistency if she was kicked once or repeatedly, the line is crossed where a reasonable jury, acting rationally, could accept the account as reliable. I have concluded that the jury’s advantage of seeing the complainant’s demeanour cannot remedy this level of inadequacy. Evidence such as complaint evidence, which relies on the complainant’s account to others, cannot remedy such deficiencies. Moreover in this case, the complaint evidence only served to further highlight the unreliability of the complainant’s account.

The complaints evidence

As already set out, the complainant complained to police on 24 October 2017 and said that she was motivated to do so as she was in fear of the applicant returning to the apartment and being further assaulted by him. The evidence of the texts made it clear, however, that the complainant only called the police after she was unsuccessful over a substantial period of time in having the applicant return to the apartment. Contrary to the applicant’s evidence, the overwhelming inference to be drawn from the texts comprising Exhibit 6 was that the complainant was desperate for the applicant to return to the apartment.
At trial, evidence of complaint made to Laura Bramble and the complainant’s father was adduced. Both complaints were made after the report to police and so provided little support for the complainant’s account. Moreover, these complaints were not, as is most commonly the case, confidences made to persons with whom the complainant was close, in the context of a reluctance or inability to bring sensitive subject matter to the attention of the police or other authorities. More particularly, evidence of complaints made after the complainant had already complained to the police were incapable of rebutting the doubt arising from her false account of the circumstances motivating her police report. In addition, it is clear that the complainant’s accounts of what had occurred lacked cogency and consistency.
What is particularly noteworthy is that the complainant’s accounts to the “complaint witnesses” were different to her evidence and different as between each version. Importantly, the complainant did not give any complaint witness the version she gave at trial, namely the infliction of one hard stomp to her left hip. She told Constable Nair, who attended on 24 October, that she was kicked on her right and left sides (T147.28). Vanessa said the complainant told her that the applicant kicked her “repeatedly” (T102.24, 102.49). Vanessa also said the complainant told Dr Olschewksi, in her presence, that the applicant “repeatedly beat down” on top of her hip (T107.29).
In relation to that matter, Dr Olschewski said:

“So [S] described being kicked by her partner on 14 October 2017. She also thought she may have been stomped by her partner as she was lying on her right side while he stomped with his heel on her left side. She described being unable to walk for approximately two days following the episode.” (emphasis added) (T126.13)

Evidence was also given of complaints made to Steven Low and Vanessa which were said to pre-date the police report. A close analysis of this evidence, however, makes that conclusion doubtful.

Steven Low

The complainant sent a text message to Steven Low on 11 October 2017 which included “... I shouldn’t have even forgiven him for being physically abusive...” (Exhibit D). If this could be properly regarded as a complaint in relation to the charged act, it pre-dated the complaint to the police. However, it was doubtful that this text could be accepted as relating to the charged count. Although at trial, the complainant said that the message referred to the offence of which Mr Low was aware and that the three of them had discussed the injuries which the applicant had inflicted on her, her account is problematic in at least three respects.
First, the complainant changed the date of the alleged offence in order to accommodate the text message in her narrative. In her recorded interview, the complainant said the offence occurred on 11 or 12 October. She appeared to be more certain of the day, Thursday, than the date (A300-302, 320-321). This would place the incident as occurring on 12 October 2017. If the recorded interview account was accurate (and it was recorded shortly after the alleged event) the text of 11 October 2017 could not have been about the charged act.
Secondly, the complaint is, in general terms, in the context of a relationship in which prior physical abuse was alleged and without reference to any particular incident. In addition, the wording of the complaint is such that it suggests a period of time had elapsed during which the complainant had forgiven the applicant and then regretted doing so.
Thirdly, if the complainant were accepted, Steven Low was a critical witness capable of giving evidence devastating to the applicant. The complainant said he was present with the applicant the following day in Bondi, was aware of the assault and saw her injuries and heard the applicant make admissions:
The evidence in the statement was:

“A493. Um David was pretty drunk, he was pretty, it was actually one of the times that I think he really didn’t know what was going on. He and his friends, they forced me, like, I’ve spent two hours... no. He, he brought his friend over to sort of be like, I’ve done this to [S], I’m like I need to change, blah blah blah blah that he was trying to get me to show my bruise to his friend and his friend was just being inappropriate with me and looked, like really looking in my face, looking at my scar and I didn’t want anyone looking at me, looking at my bruise, so I didn’t want ... looking at me I don’t want people to know.”
“Q. And then later in the day David came across with Stephen Lo again, is that right?
A. They both came to where I was staying.
Q. You described him as being pretty drunk?
A. He had been drinking. He brought a bottle of vodka with him in his - in his arms.
...
Q. And I think you said Mr Lo was with him as well, is that right?
A. Correct.
Q. And was there any conversation that you can recall between yourself, Mr Lo and David again, any words that you remember being exchanged?
A. David was apologetic and saying sorry to me for what had happened. He brought his friend and actually wanted to show the bruise to his friend. He insisted on me lifting my skirt to show it.
Q. And did you do that?
A. I refused for a few hours but I think it - yeah it was - he did see it. Both of them saw it.” (T24.20)

It follows from that evidence (if it is correct) that Mr Low was a material witness whom the prosecution would be expected to call. His absence from the trial without explanation is a matter to be taken into account when assessing whether there is a doubt as to the applicant’s guilt (Mahmood v State of Western Australia (2008) 232 CLR 397; [2008] HCA 1). In the summing up, an appropriate Mahmood direction was given to the jury by the trial judge in respect of Mr Low (SU 27.5).
A further effect of the Crown’s failure to call Mr Low was that his exchange of texts with the complainant were not explained. Given his absence, there is little to be gained by setting out the whole of the texts. A brief selection is sufficient to convey the flavour of what was being said by Mr Low and his concern for both the applicant and the complainant. What does emerge from the responses by Mr Low is that no reference is made to abuse or assault by the applicant. There are, however, repeated references to the complainant hurting herself and the couple’s shared problem with drugs and alcohol.
Relevant texts are:

“You both need to come off coke!” (Exhibit D, 8:30am 12.10.17)
“I’m sorry to hear that as I care for you and David so much! I tried to get you both away from the drugs and alcohol as you can remember!!! All I know is that you were both off your heads with coke and vodka ...
You were hurting yourself and David was not himself.
I tried to get David into rehab and you to see someone to stop hurting yourself ...”
(2:25pm, 12.10.17) “I think you both had problems – and it was the drugs and alcohol ...
You are such a sweet and caring person.
And it did concern me that you were hurting yourself ... have you stopped hurting yourself it did worry me” (untimed)

What can be gained from the text messages sent by Mr Low and which are referred to above is that there is no reference to violence or assaults or “injuries” originating from that source. His focus in the texts is entirely upon the self-harming conduct which he perceived as affecting the applicant and the complainant by virtue of their abuse of alcohol and drugs. Given Mr Low’s obvious concern for the welfare of both the applicant and the complainant, a reasonable inference can be drawn that had he been aware of a pattern of abusive behaviour by the applicant and the serious assault and the quite dramatic manner in which it was inflicted on 10-12 October 2017 it would have been referred to in the text messages exchanged with the complainant the next day. Against that background, it is surprising that the text messages only made reference to other issues between the applicant and the complainant. In those circumstances, I have concluded that it is doubtful that any complaint was made to Mr Low in relation to the allegation the subject of Count 2.

Complaint to Vanessa

Vanessa was the only witness who claimed to have witnessed a complaint before the police report. However, when the complaint is considered in context, there is a strong inference available that the complaint to her was also made after the report to the police. Counsel for the Crown in this appeal accepted that Vanessa may have conflated information given to her by the complainant.
It was the evidence of Vanessa that on 15 or 17 October, she drove the complainant for about five hours on a trip up the coast (T101.46-T102.12). She said the complainant had trouble getting in and out of the car and told her that David kicked her in the hip and showed her the bruise (T102.31). Vanessa recounted the complainant as saying “David loves me. David kicked me. He didn’t mean to do it. He kicked me repeatedly. He’s helping me out, I’ve been very depressed” (T102.24).
Vanessa said that the complainant said that she was kicked in the hip and showed her the bruise, which was a horrible yellow colour. She described the bruise as “Huge. It took up the entire side of her leg”. (T102.35)
If that evidence is accepted, Vanessa was the only person to whom the complainant confided about the abuse before reporting to the police. However, Vanessa’s account does not contain any of the details that might be expected of such a disclosure to a close family member. In particular, there was no urging of the complainant to go to the police or to leave the relationship (conversations which would be unnecessary if the first complaint was after the police report).
Vanessa’s evidence would have considerably more force if she had received a complaint of a punch to the eye, or if she had observed the visible bruising around the eye, which could be expected five days after the alleged assault (or three days on the complainant’s version of an assault on Thursday 12 October).
Importantly, Vanessa’s account was inconsistent with what the complainant said. At trial, the complainant specifically said that she told Vanessa about the abuse after she went to the police (T26.35). She said that Vanessa was aware of her injury during the coast trip but she did not think she showed the bruise to her and “I said that I had hurt my leg. That’s all I said” (T27.7). Further, the complainant did not tell police in her interview that she had confided in Vanessa. If she had in fact confided in Vanessa, it might be expected that she would nominate to the police the only person to whom she disclosed the abuse before the complaint to the police. This is particularly so when the complainant had referred to Vanessa in her interview but only in the context of Vanessa convincing her to attend hospital (A617). It follows, therefore, that acceptance that there was a complaint made before that to the police, requires a rejection of the complainant’s account on that issue.
In addition, Vanessa’s account does not accord with the independent evidence. She said that a week after the coast trip the complainant contacted her and told her about being kicked and being unable to walk for two days (T102.48). The complainant said that she knew it was the same injury because there were text messages which confirmed the discussion:

“"Yeah, she - she had messaged me and saying it was the same. “
“Do you remember I saw you – I showed you last fortnight”
“Mm, yeah, that's it” (T103.17).

Despite that evidence, no such message/text was adduced. The only text exchange post-dated the police report and appeared to be a first disclosure from the complainant (Exhibit E - “I went to the police about David ... He kicked my leg and I had a massive bruise...”).

It can be reasonably inferred from that communication that there would have been no need for the complainant to tell Vanessa that the applicant kicked her if she had already complained about this.
In cross-examination, Vanessa said at first “I knew about the bruise, but she didn’t speak about the circumstances in which it occurred” (T109.31). This was a telling statement, although Vanessa maintained she was told of an assault and saw the bruise. It is also significant that Vanessa attended Dr Olschewski with the complainant and provided a far more graphic account of the disclosure to Dr Olschewski than he did in his own evidence which, given his role, was likely to be more reliable (see para [65] above and T107.14).
Vanessa was also the only witness who provided evidence supportive of the context incidents. The clear flavour of her evidence was that she was trying to bolster and support her niece’s account. Whatever her motivations, I have a real doubt as to whether any complaint was made to her prior to the complaint to the police. In that regard, the following evidence of Vanessa is instructive:

“Q. When [S] was with the doctor, did [S] give any account of how she sustained the injury?
A. Yes, that's when we finally worked out how the injury occurred. ...” (T107.14)

Medical Evidence

As submitted by the Crown, the medical evidence was effectively neutral in the context of the issues at trial. At its highest, the evidence established that a fracture could occur in the manner alleged by the complainant and accordingly, her account could not be rejected, at least on that basis, as objectively unlikely or implausible. The evidence did not exclude the alternate hypothesis of the complainant falling on a hard surface while drunk, particularly a fall from or on the stairs.
The treating orthopaedic surgeon, Dr Olschewski, said in chief that any trauma to the hip could cause a hip fracture (T132.42). His evidence in cross-examination that fractured hips in young people were primarily caused by “high energy” falls was based on two studies (T135.45). Earlier, he expressed the caveat that those studies “aren’t great evidence” as they focused on risk factors rather than cause and effect (T134.28). He agreed that an unbroken fall due to intoxication would be higher impact (but “not necessarily” high energy) (T135.22). He also agreed that a fall from stairs would cause the same type of fracture but “... you’d be taking quite a tumble and I think you’d probably injure more than just your hip” (T135.7).
It should be noted that this comment involved a degree of speculation because there was no evidence that a fall would invariably produce other injuries. The comment also failed to take into account the potential for healing in the 21 day lapse between the event and first treatment. In fact, the Crown case assumed healing of the alleged black eye as it was not supported by medical evidence. It follows that injuries without visible signs, such as a sprained wrist, could only be excluded if the complainant’s history to Dr Olschewski was accepted as reliable. Taking the history out of the equation, Dr Olschewski agreed that the injury could be caused by any form of significant blunt force trauma (T136.7).
Dr Pisani was an emergency medicine specialist. He also agreed that falling down a flight of stairs could cause the injury (T141.40). In evidence in chief, Dr Pisani stated that the bruising to the hip indicated blunt force trauma and that blunt force trauma could be caused in a number of ways including a knock against a hard surface or a fall (T140.40). In cross-examination, he agreed that the fractured area (the neck of the femur) was the weakest part of the hip and thus needed a lesser intensity of blunt force to fracture (T141.1-7). He said “ ... falling from a height could cause that, also falling onto that area of the left hip” (T141.30). While he stated “ I wouldn’t expect a hip fracture from a person who’s a young adult with normal bone density falling onto a floor, even a hard floor ...”. Dr Pisani did not, however, exclude the possibility (T142.23). Dr Pisani agreed that the intensity of an injury might increase if a person was intoxicated and that inhibited their ability to break their fall (T142.15).

The defence expert was an experienced forensic pathologist, Professor Duflou. He agreed that intoxication increased the risk of hip fractures in young people “both as a result of falling over while on those substances, and also once you fall over slowed reflexes or incorrectly applied standard reflexes so that you don’t put your arm out while you’re falling” (T171.18). His evidence went further than the Crown witnesses in that it explored the biomechanics of a fall. He stated that a standing fall could generate up to 250-300 joules of energy and a femur required relatively low energy, about 25-30 joules, to fracture (T171.30, T171.49). That evidence was not contested and was available to be preferred by the jury.
His evidence confirmed that a fracture was possible from a standing height. The crux of Professor Duflou’s evidence was that the injury was caused by the application of blunt force trauma but:

“... whether that blunt force was the result of falling against something, falling onto let’s say a flat surface even or as a result of a blow with something or a blow in the form of a kick or a stomp I simply can’t tell in this case, I just don’t think that there are any features that provide you with discriminating information here” (T173.37).

It follows that the effect of the medical evidence was that it was essentially neutral and depended upon which version of the facts was accepted.

Evidence supporting the alternate hypothesis: a fall

There was a body of evidence that supported the reasonable possibility that the injury was caused by a fall when the complainant was drunk. It can be distilled as follows:

the complainant had a serious drug and alcohol problem at the time of the alleged offence and admitted consuming alcohol and cocaine on the night;

the complainant did not promptly seek medical attention or complain to police after the event;

when the complainant did eventually seek medical attention she reported to hospital staff that her injury was from a fall (T62.10);

when complaints were made about the applicant, the complainant provided materially different accounts of the event to the complaint witnesses;

photos of the stairs at the unit showed them to be potentially perilous, especially to an intoxicated person (Exhibit 5);

the complainant’s father had seen her get so drunk that she struggled to walk and talk (Exhibit J).

In relation to the latter point, the complainant’s father and the applicant were exchanging text messages from 11 October (the day after the alleged offence) because the applicant contacted him for help with the complainant’s drinking problem (Exhibit J). In closing address, the Crown told the jury “it was a matter for them what they made of the timing”, perhaps hinting that the applicant was pre-emptively engineering a defence. However, the complainant’s father expressed independent concern about the complainant’s heavy drinking, including how she became so drunk in his presence at a family dinner on 15 October 2017 that she struggled to walk and talk and had become hostile (Exhibit J). It is difficult to conceive why the applicant would try to draw the complainant and her father closer together if he had recently violently assaulted her.
It was common ground that the applicant had suffered an infection in his right leg from an infected tattoo, had developed cellulitis and that it was still affecting him October. There was uncontradicted evidence of the applicant relying on crutches around this time. The injury did not make the offence impossible, but certainly less likely. Records were tendered which showed that the applicant had hired crutches from 19 September to 9 November 2017 (T193, Exhibit 14) and was on leave from work from 2 October to 6 October 2017 (Exhibit 12). Mr Hai Le (no relation) gave evidence of seeing the applicant when he was working from home in the first week of October. He said the applicant’s leg was elevated on the table, he had crutches and was hobbling between the furniture when he had to move (T189.15). On or around 17-19 October 2017, Mr Le saw the applicant at work. He was still using crutches and “hobbling around” (T189.30). On 29 October 2017, Mr Le said the applicant was limping and walking “very gingerly” and still looked like he was in a lot of pain (T190.14). Records from the Royal North Shore Hospital supported the diagnosis of cellulitis.
The complainant’s response to this evidence can only be said to reflect poorly on her credit. She initially denied that the applicant had ever been on crutches or had been limping and struggling to ambulate (T85). This was implausible given the couple’s regular contact during October 2017 and was contradicted by text messages sent to the applicant by the complainant referring to his leg pain, the need for crutches and expressing sympathy for his predicament (Exhibit 9).
The applicant submitted that this was symptomatic of the complainant’s evidence in that she would persist in an account showing the applicant in the possible worst light until confronted with other evidence.
Another example involved drug use. The complainant gave context evidence that the applicant introduced her to MDMA, which she said she did not like (A133-136, T7-8, T11-12), pressured her to take drugs (A129), put MDMA in her wine without her consent (A145) and had always been the one to source drugs for the pair (T42-43). Text messages adduced in cross-examination included messages from her to the applicant expressing enthusiasm for MDMA (T70.45, T71.50), planning to collect drugs before a night out (T72.40) and requesting that the applicant get her drugs (T69.22). The applicant submitted that while these examples might be seen as relatively trivial or benign in isolation, they all amounted to lies, or at least highly unreliable accounts, in the context of a troubling pattern of consistent unreliability in a case that depended on acceptance of the complainant’s honesty and reliability.
I agree with that criticism. The two examples identified, particularly that relating to crutches, gave substance to the submission.
It was not open to the complainant, as she attempted to do, to rely upon lack of memory to explain the discrepancy between her evidence as to what happened between her and the applicant on 24 October 2017 and the content of her text messages to him. She clearly had no difficulty in recounting to police when they attended on 24 October what she said happened that night. She had no difficulty in recounting those matters sixteen days later when she participated in the recorded interview. Those matters would have been fresh in her mind at that time (as would also the fact of the text messages). Her evidence at trial was generally in line with what she had said on those earlier occasions. Yet when cross-examined about the text messages, and the substantial inconsistencies and discrepancies which they created, all she could offer was that the messages did not accord with her memory. As a result, the jury were left with the fact of obvious lies which were otherwise completely unexplained.
The approach of the Crown on the appeal was to eschew an analysis of the whole of the evidence and to offer possible explanations for the discrepancies and difficulties created by the complainant’s evidence. For example, the Crown submitted that a possible explanation for the texts sent on 24 October was that the complainant was subject to confusing and contradictory emotions at the time. Of course, that was not an explanation offered by the complainant. The effect of the Crown’s approach was to assume the applicant’s guilt and then reason towards a scenario consistent with guilt by adjusting the narrative to explain the various discrepancies in the complainant’s evidence. That is the very opposite of the test required by the authorities, i.e. to consider all of the evidence and to decide whether it was open to the jury to find guilt beyond reasonable doubt.

Expected evidence in support did not materialise

The complainant alleged that she had been subject to months of physical abuse, escalating to weekly attacks where she would be forcibly ejected from the apartment without her possessions and that sometimes her clothes were torn (A197, A207, T44.1).
No independent evidence supported this account and no evidence, medical or otherwise, was adduced to support the complainant’s claim to police that she had been left “unable to walk” by the applicant on four occasions (T144.7, T149.23).
Aspects of the account given in the pre-recorded interview was such as to create an expectation of evidence which would support the complainant’s account. The complainant said that:

she caught an Uber to Bondi on the night of the offence and there was a record on her phone (T24.14, A483);

she had four text conversations on her phone about the applicant assaulting her (A212);

she sent her brother messages after the assault saying she needed to go to hospital (but he thought it related to her mental health issues as she was taking a new medication which made her feel a little unstable: A575-585);

she sent the applicant messages saying that she felt unsafe (A217);

she regularly caught cabs or Ubers home to Bondi when forced out of the apartment (T44.23); and

the applicant had installed Spyware on her phone to discover her passwords (A278-281).

Despite the obvious capacity of independent evidence to support these claims, if true, no such evidence was adduced. The absence of such evidence cannot be lightly dismissed, particularly when most could be supported by reference to the complainant’s phone which she had with her and apparently had reference to at the time of the recorded interview (A476, 482-483). The absence of the evidence must be evaluated in the context of the onus of proof. This absence of what should have been readily available evidence, if true, was a further obstacle to the prosecution establishing the case beyond reasonable doubt and provides a basis for entertaining a reasonable doubt (Mahmood at [27]). The applicant submitted that in totality there was more independent evidence supporting the alternative hypothesis of a fall than the applicant’s detailed account of months of prolonged violence.

Conclusion

The applicant submitted that a reasonable jury acting rationally on the whole of the evidence ought to have entertained a doubt as to the guilt of the applicant. He submitted that the foundation of that doubt was introduced by the complainant in her very first dealing with police by falsely claiming that she had sought help because she was in imminent fear of the applicant. Such doubt builds as a result of the inconsistencies in her various accounts and the lack of coherence in central features of her evidence of the event such as her claim to have been punched in the eye resulting in what would have been an obvious injury. I agree with that assessment.
In addition to the inadequacies in the complainant’s account of central features of the event, her account of peripheral events was consistently proved unreliable whether it related to drug use, phone messages or timing. The problems in the Crown case were exacerbated when attention was drawn to the potential independent support which was lacking. There were inconsistencies in the complaint evidence, no evidence from eye witnesses to events or injuries, no evidence from Mr Low and an absence of medical evidence in relation to a bruised eye (an injury that would assist to differentiate between a fall and an assault). The alternate hypothesis, a fall while drunk, is far from fanciful in the light of the complainant’s serious alcohol issues, inability to consistently describe the assault, confusion as to the cause of her pain, the delay in complaint and her apparent anger and resentment towards the applicant when the first complaint was made to police. In totality these doubts cannot be reconciled by the advantage held by the jury and the conviction should be set aside.
It follows from the above that having considered the whole of the evidence, I have concluded that it was not open to the jury to find beyond reasonable doubt that the applicant was guilty of Count 2. I am left with a reasonable doubt as to his guilt. That doubt is reinforced by the unexplained absence of Mr Low. That is a doubt which the jury should have had.
Accordingly, the orders which I propose are:

The appeal against conviction is allowed.

The conviction of the applicant on Count 2 on 19 November 2019 is quashed and in lieu thereof, a verdict of acquittal is entered.

The applicant is to be released from custody forthwith.

DAVIES J: I have had the considerable advantage of reading in draft the judgments of Hoeben CJ at CL and Adamson J.
From my reading and examination of the transcripts of evidence given by the witnesses at the trial, the opening and closing addresses and the evidence tendered, I consider that the guilty verdict in relation to count 2 was open to the jury. I agree with the reasons given by Adamson J but I would add the following.
Senior counsel for the applicant said on more than one occasion that this was a single witness case. Whilst that is true to a large extent, it overlooks the significant objective evidence that the single witness, the complainant, sustained a fracture to her femur. Whilst the complainant’s reliability was a consideration for the jury and for this Court, the fact of the fractured femur meant that the evidence of the medical experts as to possible causation of the fracture assumed considerable importance.
I accept that it was suggested in cross-examination to the complainant that the fracture had occurred in other ways, most particularly, by the complainant being involved in a fall, perhaps because of her intoxication with alcohol and/or drugs. She denied any such fall, and there was no other evidence pointing to such an event. The issue was, therefore, whether the Crown had disproved a fall, or any other cause, as a reasonable possible explanation for the fracture.
Although the Crown in its written submissions suggested that the medical evidence was neutral, I do not agree that that is so. Since it is the task of the judges of this Court to make their own independent assessment of the evidence to see whether we have a doubt about the conviction, I do not consider that I am required to accept any concession in that regard.
Much of the medical evidence is summarised in the judgment of Hoeben CJ at CL at [86]-[91]. However, the following extracts from the doctors are important.
Dr Olschewski, the plaintiff’s own surgeon, gave this evidence in chief:

Q. You also give an opinion towards the end of your certificate there in respect of the injury. Are you able to state that opinion onto the record.
A. So, yeah, I said that a kicking or stomping on the hip would be a consistent mechanism of injury which could lead to the hip fracture that - that [S] suffered.
Q. And did she have any problems or pain in the hip prior to these events that she have any..(not transcribable)..
A. No, she’d never had any problems or pain in the hip prior to these events and there weren’t any other factors that I thought that contributed to - to a hip fracture at that time.
Q. And are there any other mechanisms that may have caused such an injury?
A. Well, any sort of trauma to the hip area can cause a hip fracture. So that’s - that’s possible. Based on my interaction with [S] and my findings when I examined her and the fracture pattern, everything was consistent with what she told me, and I had no reason to - to doubt that. But - but trauma to the hip in general can cause a fracture.

He was cross-examined about other causes of hip fractures in young people. He gave this evidence:

Q. The consumption of illicit drugs and alcohol. Is that something that may be a risk factor in the suffering of such an injury?
A. So alcohol - and - and I think one of the studies which you may be referring to, because I - I received a copy of a report from - from a witness that was tendered to the Court. But there - there were two papers that do describe hip fractures in patients between 20 and 50, I think. And in those papers, I didn’t think that there was a - a direct correlation, particularly in the young patients, between alcohol leading to - I think where you’re going is leading to falls and leading to patients fracturing their hip as a result of falls.
The - in the - in older patients - and in those papers the alcohol use was higher in the patients between 40 and 50. And the patients that suffered hip fractures with alcohol use, those patients often had many other medical factors as well. So they had other medical problems that probably also contributed to those patients being at risk for fracturing their hip at a fall from standing height. It's - it's multifactorial. But in the younger patients, particularly the patients under 40, I would think that - and based on me reading those studies, I would think that you would need a higher energy injury to cause that type of fracture, rather than simply a - a fall.
Q. All right. What about a fall down a set of stairs?
A. A fall down a set of stairs is a significant fall and could cause that type of fracture. If someone fell down stairs, I might expect them to have injuries other than just an isolated injury to their hip, not - you know, you'd be taking quite a tumble and I think you'd probably injure more than just your hip.
…
Q. And an unbroken fall is, you would agree with me, is a higher impact form of blunt trauma than a broken fall.
A. Yes, but I'd - I still wouldn't say that it's, you know, necessarily a high energy fall. So for falls - for example, the reasons - the reasons why older patients will break their hips when they fall from a position where they're just standing, in addition to not being able to break their falls they have - their bones don't have the same density as younger patients, so it takes less energy to break the bones. In addition, older people are also physiologically not - at least the patients who suffer hip fractures often aren't as physiologically robust. When a normal, young, healthy person falls, a lot of the energy of the fall - even if they don't break the fall, the energy can be dissipated into the soft tissue envelope around the hip.
…
Q. You would say that this injury has been caused by some form of blunt force trauma. Is that right?
A. Yes. Correct.
Q. And it would be a significant blunt force trauma?
A. Correct. (Emphasis added)

In his judgment at [88], Hoeben CJ at CL said that the highlighted passage in the extract above involved a degree of speculation because there was no evidence that a fall would invariably produce other injuries. With great respect I do not agree. This was an opinion from an orthopaedic specialist who treated the complainant, and was cross-examined by counsel for the applicant as an expert in what might be expected from various forms of trauma including falls. It was well within the doctor’s expertise to express such an opinion, as it was to express an opinion on the likelihood of a fracture in the various scenarios put to him.
The other expert called by the Crown, Dr Pisani gave this evidence in chief:

Q. What do you say about the neck of the femur?
A. Well what I've written there is:
"The neck of the femur is the weakest part of the femur. These type of fractures occur mostly commonly in the elderly (who generally suffer from osteoporosis which weakens the bone) usually after a fall, or as a result of significant trauma in younger patients (such as in motor vehicle accidents)."

Q. If you could continue there with what you say about the conditions.
A.
"Though a number of conditions can be associated with an increased risk of femur fractures, including decreased bone density, poor state of health, cardiovascular disease and taking anti psychotic or anti HIV medication. There was no suggestion from the medical notes provided that [S] had any of these risk factors."

During this conversation [the complainant] provided with a digital photograph of her injury she had received from her boyfriend David Le on 10 October 2017. I now produce digital photograph of injury taken by the victim [the complainant] on her mobile phone.”

Medical evidence

Dr Olschewski

Dr Olschewski, an orthopaedic surgeon, diagnosed the complainant as having sustained a left femoral neck fracture which required a hip replacement. He said that it was very uncommon for someone of the complainant’s age, 23, to have a hip replacement. When it was put to him in cross-examination that the complainant could have sustained the injury in a fall, he said that “a higher energy injury [would be required] to cause that type of fracture, rather than simply a ... fall.” He explained that when a young person falls, the healthy muscle around the bone dissipates the force and prevents it from being transmitted to the bone. Dr Olschewski’s evidence was summed up in the following exchange in cross-examination:

“Q.   You would say that this injury has been caused by some form of blunt force trauma. Is that right?
A.   Yes. Correct.
Q.   And it would be a significant blunt force trauma?
A.   Correct.”

Dr Pisani

Dr Pisani, a surgeon and forensic pathologist, gave evidence as to causation as follows:

“…I agree with Dr Olshewski that a stomping or a kicking motion directed on to [the complainant]’s left hip while she was laying on her right side on the ground could have injured the femur as alleged. As this was a non-displaced fracture (where the fracture fragments remain in anatomical alignments) it is also feasible that [the complainant] could have been able to mobilise, with pain, for 15 days before seeking medical attention. Such fractures would allow some amount of mobility, as they are not separated, although separation could occur with persistent weight-bearing or mobilisation.
Q. Just to be clear, is it your opinion that she could have been walking around relatively normally for 15 days with that fracture in place?
A. She would have been in pain, but yes, she could have been walking around. That’s correct.”

In cross-examination, Dr Pisani confirmed that the history of being kicked or stomped or having blunt force trauma directed to that area of the body could result in such injuries. He said, of the level of force required:

“…a young adult who, you know, doesn’t have any issues with their bone density or any risk factors for having easy fractures, it will take a significant amount of force to break a bone. So falling from a height could cause that, also falling onto that area of the left hip. Some - often being involved in a car accident could also cause these sort of injuries. So it will involve - it will involve - having said - it will involve a significant amount of force.”

He accepted that falling from a height, such as falling down a flight of stairs or falling from a ladder could cause such a fracture. He did not agree that the ingestion of illicit drugs would necessarily cause loss of bone density and therefore should not increase the risk of “easy fractures”. Mr Dennis put to him the defence case in the following exchange:

“Q.   And would falling to a hard surface, such as a hard wooden floor or a tiled bathroom floor, increase the risk of this sort of injury?
A.   From a standing height‑‑
Q.   Yes.
A.   ‑‑I wouldn't expect this sort of injury. I wouldn’t expect a hip fracture from a person who’s a young adult with normal bone density falling onto a floor, even a hard flood, I wouldn’t expect this sort of injury.
Q.   So you would say that it appears unlikely?
A.   Yes, it’s unlikely.
Q.   All right. But would you also say that you can’t absolutely exclude the possibility?
A.   Yeah, so it’s not impossible to do this, but it’s quite unlikely.”

Other evidence adduced by the Crown

The agreed facts included that the complainant had been in India from 9-17 December 2016 and in New Zealand from 21-24 December 2016 and again between 11 and 13 January 2017. They also included that the applicant was there from 20-24 December 2016 and again between 11 and 13 January 2017. They were both in Vietnam from 24 July until 5 August 2017.
The Crown also tendered text messages which had been provided by the complainant’s father (and were marked Exhibit J). As these were tendered after the complainant’s evidence had been finished, she was not cross-examined about them. They comprise text messages between the complainant’s father and the applicant which include the following texts sent on Saturday 14 October 2017 (a few days after the alleged incident):

“Hi Paddy [the complainant] and I [the applicant] were wondering if you and [the complainant’s brother] will join us for dinner tomorrow still? Will be great to see you both. Thanks David.”

There is mention in the texts of the complainant’s “drinking issues”. Ultimately, they arranged to meet on the evening of Sunday 15 October 2017 at the York Street apartment. On the following day, the complainant’s father sent the applicant a text which said:

“Gday mate,
God where do I start????
First up thanks for bringing this issue to light, I was aware [the complainant] did drink but last night showed that she doesnt know when to stop.
I can be a bit that way myself when I get stuck into the grog but to see my little girl struggling to walk and talk, and getting hostile was pretty bloody hard to watch.
Seeing her break down out the front of your building was heartbreaking.
I wanted to talk to her but there was no point when she was in that state.
I need to speak with her about this when she is 100% sober or close to it.
When would be the best time to do that do you think?
Straight after work?
Does she drink whilst at work do you know?
Had she been drinking yesterday before [the complainant’s brother] and I arrived at 7pm? I am thinking she had as she was extremely drunk by the time we left the pub.
Thanks again for your efforts mate, I reckon we will need to knuckle down together to get this sorted.
Paddy.”

The defence case

The evidence of Dr Duflou

The applicant called expert evidence from Dr Duflou, a forensic pathologist. He accepted that he could not exclude the possibility that the injury sustained by the complainant was the result of being stomped on the hip or that it was the result of a fall.

The evidence of Hai Le

The applicant called evidence of Hai Le, who was not a relation but a friend. He said that on 5 October 2017, the applicant was working from home because he had an infection on his leg. The applicant was moving with the assistance of crutches at the time. On around 17 or 18 October 2017, the applicant came to the office on crutches to attend to an internet security threat. By the end of October 2017, the applicant was still using crutches and when he walked without them he was limping. In cross-examination, Mr Le confirmed that he could not recall whether the applicant was using crutches at the end of October 2017 but that the crutches were in the car. He said that the infected tattoo did not affect the sole of the applicant’s foot.

Other evidence

The defence tendered text messages between the applicant and the complainant about his leg from 18 September 2017 until 28 September 2017.
The defence also tendered the applicant’s sick leave applications for 25 to 29 September 2017 and 2 to 6 October 2017.
The defence tendered hospital records which showed that the applicant was admitted to, and discharged from, Royal North Shore Hospital on 22 September 2017, following an infection after a tattoo which had been performed six days previously. An affidavit of Jay Koovargee, a pharmacist, was read without objection. He was not required for cross-examination. The hire agreement for crutches was tendered. Mr Koovargee deposed that the crutches were rented on 19 September 2017 and returned on 8 November 2017.

The applicant’s challenge to the verdict

Mr Dhanji submitted that the Crown case was, in substance, a single witness case which depended on the reliability of the complainant. He contended that there were three matters which, taken together, established that the verdict was unreasonable: the complainant’s account of the event; the circumstances surrounding her bringing the matter to the attention of police; and the absence of any supporting evidence. It is convenient to address these three matters in turn, while accepting that, consistent with the authorities, a global approach is to be taken to the evidence in the trial.

The complainant’s account of the event

Mr Dhanji made much of the circumstance that the complainant described a black eye having been inflicted shortly before the applicant had stomped or kicked her hip. He contended that it was curious that no one gave evidence to support the proposition that she had sustained a black eye at about that time, although she was seen by others in the period following the incident. He submitted that, if she had a black eye, it could be expected to have been seen by the complainant’s aunt, when they went away either the following weekend or the weekend afterwards. He also submitted that, if he had actually given her a black eye, she could have been expected to photograph that as well as the bruise on her hip. Mr Dhanji also submitted that it ought not be inferred from her evidence that she was a make-up artist that she covered up the black eye which she alleged had been inflicted on 10 October 2017 since she did not give evidence that she had used make-up to conceal it.
He argued that the evidence that she had been given a black eye was unreliable and indicated that the complainant’s evidence at trial about the event generally, including the evidence about the alleged injury to her hip, was insufficiently credible to prove the Crown case beyond reasonable doubt.
Mr Dhanji also pointed to inconsistencies between the complainant’s accounts of how she had been injured. He referred to her version to police on 9 November 2017 in the recorded interview that he had punched her in the eye and kicked her (implicitly once) and compared it with the version she had given on 24 October 2017 to Constable Nair that he was “kicking her” on her left side just below her hip and on her right side. I pointed out that Ms Stacey’s evidence was that the complainant had told her that the applicant had kicked her repeatedly. He contended that the differences in these versions revealed significant reconstruction.
Mr Dhanji also relied on the complainant’s incorrect self-diagnosis that she had a pinched nerve and contended that this was inconsistent with the complainant having been injured in the way she had described in her evidence.
Further, he relied on the text messages about the proposed dinner on the evening of Sunday 15 October 2017 as being inconsistent with the alleged attack. Mr Dhanji asked rhetorically why the applicant would have instigated an invitation to the complainant’s family if he had actually attacked her and she was still obviously struggling from the injury and had, as the complainant’s evidence indicated, a black eye which could be expected still to be visible.
Mr Dhanji submitted that, given these inconsistencies, the complainant’s evidence was unreliable and that, as the verdict was based on her evidence, the verdict was unreasonable.

The reliability of the complainant regarding the circumstances of raising the matter with the police

Mr Dhanji relied on the apparent inconsistencies between, on the one hand, the version which the complainant gave to police on 24 October 2017, that she was scared of the applicant and thought that he might attack her, and, on the other, the contemporaneous text messages which she had sent to the applicant and the unanswered calls she had made to him before calling Triple-0 and immediately thereafter which indicated that she wanted him to come back to the apartment. He submitted that it would appear from her texts and phone calls that she actually wanted him to return and called Triple-0 when he did not respond, not out of fear but out of another motive. He contended that this could not be put down to faulty recollection because the police officers were told of what had occurred immediately before she called Triple-0 as soon as they arrived at the unit. Mr Dhanji submitted that this amounted to “clear dishonesty” and “significant artifice” as to the genesis of the complaint.
Mr Dhanji submitted that it was not for this Court to theorise about what had motivated her to tell untruths to the police (revenge and a desire to manipulate the applicant being two of the available possibilities), since the crucial matter was the level of dishonesty which surrounded her complaint to the police.

The alleged lack of other evidence to support the complainant’s version

Mr Dhanji submitted that while complaint evidence can be corroborative, complaints made after she had gone to police did not serve to corroborate her account. He contended that one could understand a reluctance to tell authorities of a matter which one was prepared to tell a close friend but that if the disclosures to close friends occurred after complaints to police, this did not support the complainant. He submitted that the only complaints before she had called the police were made to her aunt and to Mr Lowe and that the communication to Mr Lowe had not been shown to be related to the event.
Mr Dhanji submitted that the Crown had failed, on the medical evidence, to exclude as a reasonable possibility that the complainant had fractured her hip by falling on the floor. He also relied on the inherent unlikelihood of the applicant being able to kick the complainant on 10 October 2017, given his indisposition as a result of the tattoo infection, which had caused him to need crutches.
Mr Dhanji also relied on the absence of any evidence from Mr Lowe and submitted that his unexplained absence fortified the unreasonable verdict ground.

Consideration

The starting point is to be found in the directions which are required to be given to juries. Trial judges direct juries that they can accept part of what a witness says and reject another part. Other than this direction and directions required when witnesses are thought to belong to a category of witnesses that might be unreliable, directions are not given to juries about the assessment of the credibility of witnesses. The reason for this is that it is a fundamental foundation of the jury system that jurors know how to assess credibility, this being pre-eminently a matter for a tribunal of fact.
These principles form part of the rationale for the test for an unreasonable verdict which I set out at the outset. In The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, the High Court (French CJ, Kiefel, Bell, Keane and Gordon JJ) said:

“[65] It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact.’ Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.
[66] With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court ‘must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.’”
[Footnotes omitted.]

Another important principle, which is reflected in directions given to juries, is that the jury does not need to be satisfied of every fact in the Crown case. It is sufficient that the jury is satisfied of each element of the offence beyond reasonable doubt to return a verdict of guilty.
The question is whether it was open to a reasonable jury, properly directed, to find that the Crown had established its case beyond reasonable doubt. In the present case, this required the jury to be satisfied that the applicant had stomped or kicked the complainant in the left hip and that this was what caused her hip to fracture.
It is important to note that the question is not whether the members of this Court believe the complainant on the material facts which go to proof of the elements of the offence. Nor is it appropriate for this Court to ask, in relation to each piece of evidence which is said to be inconsistent with the complainant’s account, whether it was nonetheless reasonably possible that the account was true: Pell v The Queen at [46] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
It is useful to consider the complainant’s evidence against the following chronology, which has been established by the evidence summarised above. In March 2016, the complainant met the applicant in the course of her work as a sex worker. She was then aged about 22 and he was 39 years old. Shortly after meeting him, she travelled to Europe. While she was away, she and the applicant communicated in such a way which led the complainant to feel very strongly towards him. In about July or August 2016, the applicant paid the rent for an apartment for her to live in in Blues Point Tower. The applicant also paid for the complainant to go to India to do a course which interested her. Shortly before she left for India on 9 December 2016, he slapped her. She was away in India for just over a week and cut short her trip because it did not meet her expectations. On her return, she joined the applicant in New Zealand. They arrived back in Sydney on Christmas Eve 2016. From February or March 2017, the complainant usually lived with the applicant in his apartment in a building in York Street, Sydney, although she retained the room in Ashfield where her belongings were stored and where she occasionally slept.
The incident the subject of the charge occurred on 10 October 2017. On that night, the complainant sustained an undisplaced fracture to her left hip which caused her terrible pain. At the time, she did not appreciate the seriousness of the injury, from which she expected to recover within a relatively short period. She believed, mistakenly, that walking, though painful, would help her recovery.
After the incident, the complainant returned to the house in Bondi which she was house-sitting at the time. On the following day, 11 October 2017, the applicant visited her, both alone, in the early morning and, later that day, in the company of Mr Lowe, who was shown the bruise on her left hip. The complainant communicated with Mr Lowe by text after that meeting about the applicant’s conduct towards her. She expressed conflicting sentiments: disapproval of the applicant’s conduct as well as loyalty and concern for him.
Either that weekend (15-16 October 2017) or the following weekend (22-23 October 2017), the complainant and her aunt drove to South West Rocks, on the north coast of NSW. In the course of this trip, the complainant told her aunt that the applicant had kicked her and that her hip was very sore. She maintained that he still loved her. She continued to have trouble walking.
On Sunday 16 October 2017, the applicant and the complainant had dinner with the complainant’s father and brother. The applicant purported to be very concerned about the complainant’s drinking. The complainant drank to excess that evening. She exhibited difficulty in walking and talking. Her father and brother may have considered the former to have been solely caused by the alcohol as they were unaware that she had sustained a serious injury on 10 October 2017.

On 24 October 2017, the applicant and the complainant argued. The applicant went out, leaving the complainant inside the apartment. The complainant rang and texted him several times to persuade him to return. When no response was forthcoming, the complainant called Triple-0 and told the police that she was scared and would meet them downstairs. Police arrived but she refused to provide details of the applicant to them because she did not want to get him into trouble. They took her to the police station where she described the applicant kicking her and injuring her hip. She was not, however, prepared to make a statement or participate in a recorded interview. Her father came to the station to collect her and take her back to her room in Ashfield.
The pain in the complainant’s hip got worse. Her attempts to “walk it out” did not ease the pain. Ultimately, on 27 October 2017, the complainant called her aunt who took her to hospital where an undisplaced hip fracture was diagnosed. The complainant was told that she had to have a hip replacement, which was performed on 1 November 2017. On 9 November 2017, after she had been discharged from hospital, the complainant returned to police and gave a recorded statement, which was tendered as part of her evidence in chief.
The present is not a case like Pell v The Queen, where several objective facts and other uncontroverted evidence made it extremely unlikely that the sexual assaults had been committed in the way the complainant recalled. In the present case, the complainant herself was the source of most inconsistencies. As the jury saw and heard her recorded interview and her oral evidence, it was in a superior position to assess the complainant’s evidence and credibility. Its verdict indicated that the jury found her both credible and reliable as to the elements of count 2.
Thus, it was, for example, for the jury to determine whether the applicant’s conduct in proposing dinner with the complainant’s family on the evening of Sunday 15 October 2017 was inconsistent with that of a man who had just assaulted the complainant and caused her serious injury which, to his knowledge, had resulted in at least a substantial bruise on her hip and in her having difficulty walking. One might postulate, as Mr Dhanji did in argument, that it would be odd for a man who had assaulted his partner to want to expose her to the gaze of her family soon after the event when the effects of the injury would still have been obvious. On the other hand, a jury might regard it as consistent with their plainly abusive relationship that the applicant would oscillate between drug-fuelled violence and affectionate, inclusive gestures to perpetuate the complainant’s emotional dependency on him and her compliance with the dictates of their relationship. The jury might have regarded the applicant’s conduct in expressing concern about the complainant’s welfare, including her consumption of alcohol, as a smoke screen to assuage her family’s concerns.
It was also for the jury to determine whether it considered that the black eye said to have been inflicted in the course of the same incident was a blow to the head which did not result in any particularly marked bruise or whether it considered that the complainant had made it up to dramatise the relevant injury, being the one to her left hip.
The jury would presumably have considered, in the course of its deliberations, whether the apparent inconsistency between what the complainant told police on 24 October 2017 and her texts to the applicant before and after she called the police undermined her credibility and reliability about the alleged assault. It was for the jury to determine whether her refusal to divulge the applicant’s full name, date of birth or appearance to the police when she first called them evidenced her continuing love or emotional and financial dependency on him and whether it was inconsistent with his having inflicted a serious injury on her a fortnight before. It was also for the jury to assess the relevance and the weight of the circumstance that the complainant wanted her father to take her back to her room at Ashfield after collecting her from the police station although his preference was to take her home to his place or to her mother’s place. It was for the jury to assess whether this showed that the complainant wanted to be in a position to move back to the applicant’s apartment and continue their relationship as soon as he had calmed down.
Although Mr Dhanji made much of the alleged “neutrality” of the medical evidence (which the Crown appears to have conceded in this Court) the jury may have regarded it as a significant piece of circumstantial evidence which they were entitled to take into account in deciding whether the Crown had proved its case. At trial the Crown relied on the medical evidence in support of its case and contended that it supported the complainant’s account of how she sustained the injury to her left hip. The probative force of the medical evidence did not depend on whether the experts could exclude the hypothesis that a fall had caused the injury. The jury was entitled to take into account that it was highly unlikely that such a fracture would be sustained in a young woman aged 23 as the result of a fall, even on a hard surface, in the absence of blunt trauma to the hip. The jury was also entitled to take into account the improbability of a single dark bruise being the consequence of a fall down the stairs. The medical evidence was, relevantly, a strand in the rope (to quote the oft-used analogy used when directing juries about circumstantial evidence) which could strengthen the Crown case. The Crown’s concession on appeal cannot absolve this Court of the responsibility of having regard to the whole of the evidence, including the medical evidence, as the jury was required to do.
As for the text to Mr Lowe on 11 October 2017, it was open to the jury to accept that the applicant had divulged the bruise to Mr Lowe and encouraged the complainant to regard him as a confidant so that she would not divulge it to anyone else and so that she would be persuaded that he had her interests at heart in addressing the applicant’s drug problems. Mr Dhanji’s submission about the fact that Mr Lowe was not called must be seen in the context of the principle expressed in RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 where the High Court (Gaudron ACJ, McHugh, Gummow, Kirby, Hayne and Callinan JJ) held that in a criminal trial where a witness, who might have been expected to be called to give evidence, is not called by the Crown, the question is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the guilt of the accused: see also Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1 at [27].
In Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45, the High Court (Gaudron and Hayne JJ) said at [6]:

“Further, as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution's failure to call the person in question was in breach of the prosecution’s duty to call all material witnesses.”

It was not suggested that the Crown, by not calling Mr Lowe, who was reluctant to assist, was in breach of the prosecutor’s duty to call all material witnesses. In those circumstances, there was no warrant for the trial judge to give a Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 direction and no such direction was given: see Chidiac v The Queen (No 2) [2016] NSWCCA 120 (Bathurst CJ, Button and Fagan JJ) at [232]. Her Honour’s direction in accordance with Mahmood v The Queen was not the subject of criticism:

“Now, Mr Lowe has not been called by the Crown in the trial. I am not inviting you to guess what he would have said if he had been called. You must not do that at all. I remind you must not guess or speculate about anything but in a criminal trial because of the onus of proof that rests with the Crown, you are entitled to take into account that there was no evidence from Mr Lowe in deciding whether or not there is a reasonable doubt about the accused’s guilt on one or more of the counts.”

In these circumstances, I do not regard the absence of Mr Lowe as a witness as particularly bearing on the credibility of the complainant or the strength of the Crown case.
None of the matters referred to above is, as Mr Dhanji would have it, a matter of “making excuses” for the complainant’s inconsistencies. The jury could have formed the view that the complainant was prepared to endure an injury inflicted by the applicant if it was one from which she could recover because she had come to love and depend on him, both financially and emotionally, and believed that he loved her. The jury might have considered that once the complainant appreciated, as she did at the end of October 2017, that he had fractured her hip and that she would have to undergo a serious operation, she realised that he had not been acting in her interests and had permanently harmed her. It was open to the jury to infer that, from that time on, she stopped making excuses for him, as she had done up until that point, both when confiding in her aunt and in telling the police on the first occasion in October 2017 before she knew of the diagnosis. The jury might have considered that this was what led the complainant to participate in a recorded interview in November 2017, having been so reluctant to go on the record or identify the applicant when she was taken to the police station on 24 October 2017 following her call to Triple-0.
While the applicant was on crutches for at least some of the time between hiring them on 19 September 2017 and returning them on 8 November 2017, he was still able to travel to Bondi alone in an intoxicated state on the morning of 11 October 2017, go out to dinner on 17 October 2017 with the complainant and her father and brother and leave the apartment on the night of 24 October 2017 and stay away for several hours. I do not regard the evidence of his infected tattoo which led him to seek treatment on 22 September 2017 as casting doubt on his ability to stomp on the complainant’s hip on 10 October 2017 with sufficient force to break it when she was lying on her side on the floor at the time.
I do not regard any of the matters raised by Mr Dhanji, taken together or separately, as necessarily undermining the complainant’s credibility about the subject incident in any material way. Although the transcript extracted above is consistent with the complainant having admitted that she lied, it was a matter for the jury to interpret her evidence. The word “fine” is, in such a context, notoriously ambiguous in that it could indicate agreement or the opposite. The trial judge’s interjection provides some indication of the difficulty. The complainant’s conduct towards the applicant involved the inevitable conflict inherent in an abusive relationship: notwithstanding that he hurt her she loved him and did not want to lose him. It may be that when she called police on 24 October 2017, she did so to assist her in her dual aims of keeping the relationship with the applicant on foot and yet stopping him from assaulting her. Her descriptions to her aunt and to the police of how she sustained the injury to her hip were broadly consistent. I do not consider it to be of any particular significance whether she reported a single kick or more. It is understandable that the jury might have considered that the diagnosis caused her to rethink the relationship and stop making excuses for the applicant.
In these circumstances and for the reasons outlined above, I am not persuaded that the jury’s verdict was unreasonable. I do not have any doubt about the guilt of the applicant. However, if I had a doubt, I consider that it would fall into the category of those which the jury’s advantage in seeing and hearing the complainant’s evidence would be capable of resolving: M v The Queen at 494.

Whether an order should be made to protect the identity of the complainant

Mr Crown sought an order under the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act) to protect the identity of the complainant. He submitted that she did not want it known that she had worked as a sex worker. He relied on s 8(1)(e) of the Act and submitted that it was “otherwise necessary in the public interest for the order to be made and that the public interest significantly outweighs the public interest in open justice”. He submitted that if sex workers believed that their occupations would generally be publicised in judgments, they may be disinclined to report crimes committed against them and may be loath to give evidence against those who had inflicted injuries on them.
In deciding whether to make an order under the Act, this Court is to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: s 6.
Although the anonymisation of the complainant encroaches on the principle of open justice, it does so to a very limited degree. All the other facts are set out and able to be read by the public. The only effect of the order would be that the complainant could not readily be identified. There is a significant public interest in the victims of alleged crimes coming forward to report them to police and being prepared to give evidence at any eventual hearing or trial. If such persons believe that they will be humiliated by reason of an occupation which tends to be taken up by those who are young and desperate, they may be unwilling to come forward to report crimes or unwilling to give evidence because the personal cost may be too high. I do not regard it as fatal to the application that it was not sought in the Court below. Those participating in criminal trials might not appreciate the extent to which judgments are published and accessible on the internet. This Court’s judgments are almost invariably published online and, because of their authoritative effect, tend to attract a wider readership.
In these circumstances I am persuaded that it is necessary to make an order under the Act to protect the identity of the complainant.

Proposed orders

For the reasons given above, I propose the following orders:

Grant leave to appeal.

Appeal dismissed.

Order, until further order, on the ground in s 8(1)(e) of the Court Suppression and Non-publication Orders Act 2010 (NSW), that the complainant be referred to by the pseudonym, S, and not otherwise identified.

**********

I certify that this and the 78 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Hoeben, Chief Judge at Common Law.

Morna Lynch

Associate

Date: 23 September 2020

Endnote

Amendments

24 September 2020 - paragraphs [116] and [119] - changed name to [S] in quoted paragraphs

Decision last updated: 24 September 2020

Medium Neutral Citation:	Le v R [2020] NSWCCA 238
Hearing dates:	26 August 2020
Decision date:	23 September 2020
Before:	Hoeben CJ at CL at [1]; Davies J at [110]; Adamson J at [134]
Decision:	(1) Grant leave to appeal. (2) Appeal dismissed. (3) Order, until further order, on the ground in s 8(1)(e) of the Court Suppression and Non-publication Orders Act 2010 (NSW), that the complainant be referred to by the pseudonym, S, and not otherwise identified.
Catchwords:	CRIMINAL LAW – conviction appeal – found guilty by a jury of causing grievous bodily harm while reckless as to the causing of actual bodily harm by way of stomping or kicking the victim’s hip – acquitted of an assault occasioning actual bodily harm – sentenced to imprisonment for 3 years and 6 months with a non-parole period of 1 year and 9 months – appeal asserting that verdict of jury unreasonable or cannot be supported having regard to evidence – Crown case relied on a single witness – challenge to reliability of that witness – apparent discrepancy between initial complaint and texts sent to applicant – failure to adequately explain discrepancy – problems with complaint evidence – unexplained failure on the part of Crown to call an important witness – medical evidence supported claim – availability of reasonable alternate hypothesis explaining injury – leave to appeal granted but appeal dismissed.
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW) – s 8(1)(e) Crimes Act 1900 (NSW) – s 35(2) Criminal Appeal Act 1912 (NSW) – s 5(1)(b)
Cases Cited:	Chidiac v The Queen (No 2) [2016] NSWCCA 120 Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34 Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45 Fennell v The Queen [2019] HCA 37 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Mahmood v State of Western Australia (2008) 232 CLR 397; [2008] HCA 1 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Pell v The Queen [2020] HCA 12 RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Category:	Principal judgment
Parties:	David Ahn Le – Applicant Regina – Respondent Crown
Representation:	Counsel: H Dhanji SC/K Edwards – Applicant B Hatfield – Respondent Crown Solicitors: Armstrong Legal – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2017/340688
Publication restriction:	Non-publication of any information or material that may lead to the identification of the complainant (Court Suppression and Non-publication Orders Act 2010 (NSW), s 8)
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 07 February 2020 Before: Yehia SC DCJ File Number(s): 2017/340688

Date	Event	Reference
March 2016	Complainant met the applicant.	T6.
July/August 2016	After the complainant returned from a trip to Europe the applicant paid the rent for an apartment in Blues Point Tower.	T7.
6 – 12 December 2016	Complainant alleged assault (AOABH) subject of Count 1 occurred 3 days before she went to India when the applicant slapped her.	MFI #3-4 Q36-37; 53-72.
9 -17 December 2017	Complainant went to India.	Ex F.
February/March 2017	Complainant began living mainly with the applicant in his York street apartment.	MFI #3-4 Q9.
10/10/17	Alleged incident Count 2 during argument at York Street apartment.	MFI #3-4 Q357-475.
11/10/17	Following day complainant said the applicant and Steve Low came to the Bondi apartment.	MFI #3-4 Q488-496.
11-12/10/17	Series of messages between complainant and Steve Low.	Ex D.
15-17 or 21-22 October 2017	Complainant went for overnight trip with her aunt, Vanessa, to Southwest Rocks and back.	Vanessa (T101)/Ex J p17.
24/10/17	Police attend York Street apartment 02:45am following triple-zero call by the complainant. Complainant declined to participate in DVEC*. Contemporaneous series of messages and call records between the complainant and applicant.	Constables Nair (T144-147) and Yoo (T149 – 152). Ex 6.
27/10/17	Complainant contacted her aunt again, and told her she was in a lot of pain and could not walk. They attended hospital and an x-ray was taken which did not reveal anything.	Vanessa (T103-104) and Ex E.
30/10/17	Complainant attended a GP with Vanessa and was sent for a MRI. Vanessa (a radiographer by profession) could see it was a break and they went back to the GP and were referred to a specialist, Dr Olschewski.	Vanessa (T105-106).
31/10/17	Vanessa took complainant to consultation with Dr Olschewski.	T107; T125.
01/11/17	Complainant underwent surgery with Dr Olschewski.	T107; T126.
09/11/17	Complainant participated in DVEC* [1] interview with police.	MFI #3-4.