R v Scott

[2023] NSWDC 271

District Court

New South Wales

Medium Neutral Citation:

R v Scott [2023] NSWDC 271

Hearing dates:

17, 18 July 2023

Date of orders:

21 July 2023

Decision date:

21 July 2023

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 228

Catchwords:

CRIMINAL LAW – appeals and reviews – appeals against Local Court convictions – domestic violence and related offences – whether date of commission for one alleged offence was adopted by the parties as a material element of the offence

Legislation Cited:

Crimes Act1900 (NSW) ss 59, 61, 428

Crimes (Appeal and Review) Act 2001 (NSW) s 18

Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 5, 7, 13

Criminal Procedure Act1986 (NSW) s 16

Cases Cited:

Fantakis v R [2023] NSWCCA 3

Fox v Percy (2003) 214 CLR 118

Lunneyv DPP (2021) 105 NSWLR 236

McIlwraith v R [2017] NSWCCA 13

McNab v DPP (NSW) (2021) 106 NSWLR 430

R v Kennedy (2000) 118 A Crim R 34

R v Stringer (2000) 116 A Crim R 198

Weissensteiner v The Queen (1993) 178 CLR 217

WGC v The Queen (2007) 233 CLR 66

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Mr C Scott (appellant)
Office of the Director of Public Prosecutions (ODPP)

Representation:

Mr S Howell (Counsel) for the appellant
Ms L Robeau (solicitor) for the Crown

File Number(s):

2022/00003858
2022/00003695

Publication restriction:

Non-publication of witness’s name in accordance with s 15A(1) of the Children (Criminal Proceedings) Act 1987

 Decision under appeal 

Court or tribunal:

Local Court of NSW

Jurisdiction:

Local Court of NSW

Date of Decision:

7 October 2022

Before:

Magistrate Covington

File Number(s):

2022/00003858
2022/00003695

REASONS FOR JUDGMENT

Background

1. After a hearing in the Local Court (Downing Centre) stretched over 4 (non-continuous) days, and after reserving his verdicts (on 15 September 2022), on 7 October 2022 Magistrate Covington found Mr Curtis Scott (the ‘appellant’) guilty of the following offences against Tay-Leiha Clark (the ‘complainant’):

1. Seq 3: assault occasioning actual bodily harm to the complainant to on 28 October 2018 (between 12:01am and 5:00am) at Sylvania, contrary to s 59(1) of the Crimes Act 1900 (NSW);

2. Seq 7: common assault against the complainant on 28 December 2018, at Lake Conjola, contrary to s 61 of the Crimes Act 1900 (NSW)

3. Seq 8: intimidating the complainant on 31 March 2019, at Sylvania with the intent to cause her physical or mental harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

2. On the same day, the Magistrate dismissed other charges (Sequences 1 & 9; 6). As a consequence of conviction for sequence 3, there was no need for the Magistrate to determine sequence 2, which was an alternative charge. Earlier, on 24 August 2022, the Magistrate found that there was no case to answer on sequences 4 and 10 and those charges were dismissed.

3. The appellant was sentenced on 18 November 2022.

4. Initially, the appellant brought an all grounds appeal from the convictions and sentence but by his Counsel’s written submissions, his appeal against sentence is not pressed.

Approach to conviction appeals

5. I adopt, as correct, the following statement of principles applicable to appeals from the Local Court (omitting citations) contained in Counsel for the appellant’s written submissions (MFI 2 on the appeal):

“2. Section 18(1) of the Crimes (Appeal and Review) Act 2001 (NSW) provides that the appeal is a rehearing on the certified transcripts of evidence and the exhibits tended in the Local Court. The proceedings are not an appeal de novo.

3. The court must give the judgment which, in its opinion, ought to have been given in the first instance.

4. The appellant must demonstrate factual, legal, or discretionary error to succeed.

5. That said, the term ‘error’ has no precise meaning and refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgement of the trial judge will not be set aside unless the appellate judge is satisfied the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of ‘error’ in the ordinary meaning of that term.

6. The requirement that the appellant show error does not reverse the onus of proof. At all material times, the prosecution bears the onus on establishing guilt beyond reasonable doubt. Demonstration of error can mean no more than satisfying the appellate judge that the magistrate should not have been satisfied beyond reasonable doubt as to the appellant’s guilt. An appeal must be upheld unless the appellate judge is satisfied of the appellant’s guilt beyond reasonable doubt.

7. The appellate judge must form their own judgment on the facts and determine on the basis of the evidence that was before the magistrate, whether the evidence was sufficient to demonstrate the appellant’s guilt beyond reasonable doubt.”

6. However, to this statement of principles, I would add the following, which essentially relate to forensic limitations upon this Court in respect to appeals of this kind:

1. there is no requirement of the Judge on appeal in this Court to undertake a free-standing review of all of the evidence in the absence of guidance and submissions from the parties: Lunneyv DPP (2021) 105 NSWLR 236 at [3], [29]-[30]; and

2. the appellate judge is not precluded from referring to the reasons for decision of the Local Court Magistrate and findings by the Magistrate as to the credibility of witnesses: McNab v DPP (NSW) (2021) 106 NSWLR 430 at [73];

3. in particular, (and as a function of the appeal being conducted on the basis of the transcript and exhibits in the Local Court) where credit findings are made by the Magistrate, the appellate judge recognises the advantage of the Magistrate in hearing and seeing the witnesses; however, whilst recognising that advantage, the appellate judge will, in practice, be focussing on the question whether disputed evidence (especially in a ‘he said, she said’ type case) is consistent with incontrovertible facts, undisputed facts and other relevant evidence: McNab at [32].

7. As is apparent, the guilty findings were made in relation to (three) separate incidents. These were helpfully summarised in Annexure B to the appellant’s written submissions as ‘the Sylvania incident’ (seq 3); the ‘Lake Conjola incident’ (seq 7) and the ‘break up allegation’ (seq 8). (The other incidents giving rise to charges that were heard, but not proven, in the Local Court, were the ‘Pullman Hotel incident’ of 1 October 2018, the ‘Christmas Day incident’ of 25 December 2018 and the ‘Boxing Day allegation’ of 26 December 2018).

8. The appellant admits a turbulent relationship between himself and the complainant in the period between 2017 and 31 March 2019; so turbulent that the relationship terminated when, on the last of these dates in the date range, the appellant attempted suicide by driving his car into a tree in suburban Melbourne.

9. The appellant’s case (relevant to sequences 3 & 7) was, and remains, that at no stage did he ever assault the complainant. His case (relevant to sequence 8) was, and remains, that at no stage did he ever threaten to kill the complainant.

The offences the subject of the guilty verdicts

Assault occasioning actual bodily harm (seq 3)

10. The elements of this offence are:

1. an assault;

2. occasioning actual bodily harm.

11. An assault, in this context, is constituted by:

1. a striking, touching or application of force by the accused to another person (the complainant);

2. that such conduct of the accused was without the consent of the complainant;

3. that such conduct was intentional or reckless in the sense that the accused realised that the complainant might be subject to immediate and unlawful violence, however slight as a result of what he or she was about to do, but yet took the risk that that might happen; and

4. that such conduct be without lawful excuse.

12. ‘Actual bodily harm’ means any hurt or injury that interferes with the health or comfort of a person. The injury does not need to be permanent but it must have more than a fleeting or trivial affect upon the victim such as fear or panic at the time of the incident.

Common assault (seq 7)

13. The element for this offence is simply an assault. This carries the same meaning as assault for the sequence 3 offending.

Intimidation (seq 8)

14. The elements of this offence are:

1. the person intimidates the complainant;

2. the person has the intention of causing the complainant to fear physical or mental harm.

15. The concept of ‘intimidates’ is defined in a variety of ways, but relevantly encapsulates conduct that causes (in the complainant) a reasonable apprehension of: (i) injury to the complainant with whom the person has a domestic relationship or (ii) violence to the complainant^[1] .

    1. Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 7(1)(c)(i) and (ii)

16. ‘Domestic relationship’ includes a relationship between two people who have or have had an intimate personal relationship with the other person, whether or not it involves or has involved a relationship of a sexual nature^[2] .

    2. Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 5(1)(c)

17. Read in isolation, s 13(1) indicates that the offence is one of ‘specific intent’, for the purposes of s 428(1) of the Crimes Act 1900 (NSW) ^[3] . It is often the case that the element of intention may be proved inferentially^[4] . The content and nature of the threat may bespeak the intention of the person who utters it.

    3. McIlwraith v R [2017] NSWCCA 13 (“McIlwraith”) at [31]-[42]

    4. The Queen v Baden-Clay (2016) 258 CLR 308 (“Baden-Clay”) at [46]-[47]

18. However, the mental element for the offence of intimidation in s 13(1) has to be read in the light of s 13(3) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which provides that a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person. In McIlwraith this mental element was construed so that although the offence in s 13(1) is one of specific intent, it can be proven either by (a) an intent to cause a person to fear physical or mental harm; or (b) knowledge that the conduct would likely cause fear in the other person.

Relationship evidence

19. In this appeal, the appellant, in particular, relied upon evidence from other witnesses concerning the state or nature of the relationship between the appellant and complainant. This was for the predominant purpose of impugning the complainant’s credibility. In effect, the appellant suggested that the picture of the relationship given by the complainant was grossly exaggerated; at least to the extent that it suggested that she had been physically abused.

Scott Drinkwater’s evidence

20. Mr Drinkwater had (along with two others) lived in the same place as the appellant in 2018 and 2019 in the Melbourne suburb of Balwyn. He said that the complainant would stay at the house every two to six weeks, and she slept in the appellant’s room. He said that he recalled being privy to an argument between the appellant and the complainant and an incident in which the appellant had followed the complainant who had arranged an Uber. He recalled the appellant apologising to him for that. He said that the appellant did not expose his feelings to him about the complainant’s social media following. In cross-examination, Mr Drinkwater described the incident concerning the complainant’s Uber as “unusual” as he had not heard them argue like that before. He did not recall her yelling out inside the house.

Oshah Ianson’s evidence

21. This witness is the partner of Scott Drinkwater. Her statement was tendered by consent (Exhibit 17). Although Mr Drinkwater lived in Melbourne, she lived in Sydney but would come to visit him in Melbourne throughout the year.

22. She said that when visiting Mr Drinkwater, she did not have much to do with the appellant and the complainant; although she thought that they seemed to be happy in love. She did, however, hear an argument between the two of them in their bedroom (which she thought had something to do with Instagram and jealousy). Similar to Mr Drinkwater, she recalled an incident where the complainant got into an Uber and the appellant got into his vehicle to follow her. Generally, she confessed to having a bad memory.

Savannah Syred’s evidence

23. A statement from Savannah Syred was also tendered by consent (Exhibit 18). Ms Syred was, at the material times, in a relationship with the player, Brandon Smith, who also lived with the appellant at Balwyn. She said that she came to stay at that place from time to time. She said that when she did, she never saw any fights or arguments between the appellant and the complainant. She recalled that the complainant had mentioned to her that the appellant was very jealous and argumentative, but did not tell her about any physical abuse until after they had broken up.

24. She recalled the complainant specifically mentioning to her that after the 2018 Rugby League Grand Final (which Melbourne Storm lost) the appellant and she had had a big argument in the hotel (apparently the Pullman Hotel), which argument continued on into the following week. The complainant informed her that she had left to go visit a place in Raratonga without the appellant.

Brandon Smith’s evidence

25. The appellant’s Counsel called Brandon Smith as a witness in the Local Court hearing. Mr Smith was and remains a rugby league player. In 2018, he was teammates with the appellant with the Melbourne Storm. In 2018 and in the first few months in 2019, Mr Smith also lived with the appellant in a four bedroom house at Balwyn. Mr Smith said that Savannah Syred was his girlfriend (at the time). He also identified the girlfriends of his housemates, Scott Drinkwater and the appellant and indicated that the girlfriends would sometimes come and stay at the house; maybe six times a year.

26. Mr Smith said that he never saw the appellant being physically violent towards the complainant. He never heard her say “Stop, you’re hurting me” and he was never concerned about the appellant’s behaviour towards her. He never saw him swinging a baseball bat around his bedroom and damaging the furniture. Asked in cross-examination whether he had conversations with the complainant, Mr Smith’s answer was that he had none that concerned the topic of violence.

27. Later, it emerged from cross-examination, that Mr Smith had lied when he asserted to Detective Senior Constable Courtney Haine that he had signed a witness statement. He explained, in effect, that he represented having signed it under sufferance because his then girlfriend, Savannah Syred, had wanted him to sign it. He accepted that he did not tell DSC Haine that he did not want to sign the statement because it was ‘anti-Curtis’.

28. Further, Mr Smith accepted that certain parts of a witness statement – which he had not signed – were true. He accepted, for example, that the appellant and the complainant had had a lot of arguments over the appellant being jealous, and had trust issues. He recalled the appellant had told him that the appellant had a broken phone and accepted that the phone had been smashed through the course of a big argument between the appellant and the complainant; which argument, he said the appellant (initially), then (ultimately) Mr Drinkwater had informed him about.

Lewis Scott’s evidence

29. The complainant had said that on 12 October 2018, whilst in a taxi with the appellant, she had seen him assault his brother Lewis; and also said that she had told Lewis Scott that the appellant was just as violent towards her.

30. The appellant’s Counsel called Lewis Scott. Lewis Scott confirmed that he was in a taxi that night with the appellant and the complainant, travelling from Watsons Bay to Sylvania. He disagreed that during the trip the appellant had punched him. He also denied the complainant’s version of the conversation.

31. The prosecutor challenged Lewis Scott for his interest in being invested in the appellant’s livelihood, which was at stake at the hearing. He was also challenged because he was intoxicated.

Karyn Murphy’s evidence

32. Ms Karyn Murphy was, at the material time, the Operations Manager of the NRL Integrity Unit. She met with the complainant and Renae Clark at Caringbah on 17 April 2019. Notes of her meeting were tendered (Exhibit 23).

33. Ms Murphy gave evidence that during the meeting, Renae Clark did most of the talking. But she said that the complainant mentioned that she had sustained bruises and that during her relationship with the appellant many times the appellant had tried to stop her from leaving during the relationship. Either or both of the complainant and her mother also referred to his jealousy and controlling behaviour (Exhibit 23 referenced his “controlling behaviour”); but also their concerns for the appellant’s mental well-being. Ms Murphy indicated that they were aware that going to the police was an option, but were more concerned with his mental well-being and were reluctant to take up the police option. Renae Clark was also concerned about the complainant being the subject of media attention.

34. Ms Murphy accepted that neither the complainant nor her mother mentioned the appellant threatening to kill the complainant nor had strangled her; nor having told Jacqui Louder, the Melbourne Storm’s psychologist, about the appellant hurting the complainant.

Jacqui Louder’s evidence

35. Jacqui Louder was the Melbourne Storm’s psychologist at the material times between 2018 and 2019. In her witness statement (Exhibit 21, a redacted version of which was tendered by consent) she stated her recollection that the appellant and complainant fought a lot as a couple on a variety of issues, but she never saw any physical fighting between them. Nor did they indicate physical harm occurred between the two of them. She stated that she had conversations with the complainant and told her that she had support if she did not feel safe in the relationship.

The complainant’s handwritten letters to the appellant

36. These letters (respectively Exhibits 7, 8 and 10) were, as the appellant’s Counsel pointed out, written within 4 to 6 weeks of the Lake Conjola incident.

37. The first was quite different in its content to the second and third. In the first, the complainant was critical of the appellant, inferentially, for his complaints about her “lifestyle” and, apparently, her Instagram profile. As I read the first, she appears to be trying to assuage the appellant’s complaints and, in that context, is reassuring him about the love of her family for him, as well as her own love for him. She makes a point of her emphasising her fidelity towards him.

38. In the second, she wrote to tell the appellant what he meant to her. In a generally intimate letter, (although stating that she was “not going to get caught up in all the negatives”), she mentioned that she was ‘scared of losing you’ and repeatedly professed her love for him. In the third letter, she wrote that she hoped to spend “forever” with the appellant.

39. This correspondence, as Counsel for the appellant emphasised, followed all of the subject incidents except for the “break up allegation”.

The Sylvania incident

The prosecutor’s opening

40. Virtually straight away in his opening in the Local Court hearing, the prosecutor applied for and (with the appellant’s consent) obtained leave to amend sequences 2 and 3 on the indictment, so as to substitute the date 28 October 2018 for the original date of 27 October 2018.

The evidence

The complainant’s evidence

41. The complainant gave the following evidence about the Sylvania incident:

1. There were many bedrooms at the Sylvania home. Relevantly, the complainant’s parents had a bedroom upstairs, along with the complainant’s grandparents and sisters (including her sister, TC). The complainant’s bedroom was downstairs;

1. On the evening of 27 October 2018, the complainant was at home (T 20.47). Her relationship with the appellant was ‘on and off’ in the couple of weeks before. She had attended a friend’s place (for a party), whilst the appellant had been out with his friends (T 20.50-21.4);

2. Whilst the complainant could be wrong about the date, she was pretty positive that this was the date (T21.6);

3. Her mother and sister collected her from the party and after getting home (in Sylvania) and having a shower, the complainant went to bed (T 21.17). She could not recall how much later that it took for the appellant to come in but she recalled that it was “a lot later” (T 21.17);

4. The appellant came into her bedroom and the complainant observed that he was intoxicated. The appellant laid down beside the complainant. The complainant moved to the appellant’s side of the bed and she cuddled into him. The complainant had her back to him and was asleep (T21.20);

5. Within five minutes, the appellant stood up on the side of the bed in a rage saying, "This is fucking ridiculous. Like you're so - you, you get so cranky at me when I drink" (T21.27). The complainant asked him “what’s wrong?” and the appellant said, "You won't even cuddle me" (T21. 42);

6. The appellant got increasingly angry with the complainant and pushed the complainant off him. The appellant then got on top of the complainant and put his hands around her neck. Whilst the appellant had both of his hands around her neck, he was screaming, in a low voice, “You’re going to fucking leave me. Why are you like this?” (T22.3);

7. The appellant had his hands around the complainant’s neck and was repeatedly pushing his head into her head (T22.20);

8. The appellant eventually got off the complainant and stood at the door saying "I'm leaving. This is the last time you'll ever hear from me. No one will even notice if I'm, if I'm dead by tomorrow. I'm going to take so many drugs and kill myself overnight" (T22.39);

9. The complainant went and shut the door to the lounge room to stop other family members hearing because she was embarrassed (T22.45);

10. The complainant sat on the edge of the lounge and as she was getting up, the appellant pushed her and she fell over the back of the longue where she ended up sitting (T23.11);

11. The appellant “rolled his eyes” and said "For fuck's sake" and came over to her and she thought he was trying to help her up. But according to the complainant, he came over and pushed her back down to the ground as she was getting up (T23.14);

12. The appellant then had the complainant up against a brick wall where she tried to duck down and pull away from the appellant. The complainant had skin off her arm and hands from when the appellant slammed her up against the wall (T23.33);

13. The complainant described the skin off her hands as skin off of her right knuckles and skin off of her left palm and elbow (T23.40);

14. The complainant described the injury to her head as an egg on the back of her head that was sore, as well as a sore forehead (T24.24);

15. The complainant’s mother then entered the room when the appellant was squatting down in front of the complainant and then standing up yelling at the complainant (T24.10);

16. The complainant was crying (T24.14);

Evidence of Kyla Johnston

42. Kyla Johnston is the complainant’s cousin. She was at her home at the time. Material parts of her evidence were that:

1. Kyla Johnston was a cousin to both the complainant and the complainant’s sister TC;

2. She visited the complainant’s home in Sylvania every now and again. In 2018 she stayed (apparently overnight) in TC’s bedroom, which was upstairs (T214.29) and directly above the complainant’s bedroom downstairs (T 214.35). TC was downstairs that night (T 214.23);

3. She heard the complainant screaming “Curtis stop” and she heard “loud bangs” and “thuds” (T214.23);

4. She got up, as she was really scared for the complainant, and went into the complainant’s mum's room, and woke Renae Clark up (T215.3);

5. She said something to the effect of “something's going on downstairs, Tay's really scared” and the complainant’s mother got up and went downstairs (T215.7);

6. After a period of time, she saw the appellant walk out the front door (T215. 37);

Renae Clark’s evidence

43. The evidence of Renae Clark, the complainant’s mother, may be summarised as follows:

1. In the early morning, at about 2:00am or 3:00am, she was woken up (T 152.25). She could hear noises and her niece (Kyla Johnston) told her that something was going on and that she thought that the complainant was being attacked. So she ran downstairs. (T152. 26). The lounge door was shut, which was not normally shut (T 152.28);

2. When asked what noises she heard, Ms Clark said that she could hear the complainant yelling “Stop Curtis, stop.” She could hear “grunting”. She could hear a low murmur which appeared to her to be a male’s voice. At that point she didn’t think the appellant was at the home so she didn’t really know what was happening, which was why she rushed downstairs (T 153.7);

3. As she moved downstairs and got closer to the lounge room, she heard the complainant say “Stop” (T153.17);

4. She opened the door to the lounge room and saw the complainant on the ground up against the wall with the appellant standing over the top of her (T152.31, 153.39, 153.42);

5. She saw that that one of the complainant’s hands were up with one of her shoulders up against the wall. She described the complainant as appearing side on, on a bit of an angle (T154.5);

6. She described the complainant’s legs as being in a crouching, half sitting way (T154.10);

7. the appellant was hovering over the complainant (T154.20);

8. the complainant was crying (T154.34);

9. the appellant stood up and faced away from her and left the room (T154.39);

10. she noticed the complainant was holding her left arm with her right arm (T155.10);

11. she noticed a lump on the complainant’s forehead and that it was very red (T156.3);

Evidence of David Clark

44. David Clark is the complainant’s father. He gave the following evidence:

1. Renae woke him up and indicated that there was trouble downstairs and that she needed him. She went downstairs and, although she was well ahead of him, a couple of minutes later, he followed her (T 205.32 – 205.47);

2. He walked into the complainant’s bedroom. As he walked in the room, the complainant was against a wall and was on the floor and Renae was standing, trying to help her (T206.4);

3. Renae was holding the complainant, trying to get her up and he thought that the complainant look a bit groggy or delirious (T206.340);

4. The complainant was holding her arm which caused him to notice that she had a mark on her arm (T206.42);

5. He described the marks as red and blotchy. He could not see any blood, but the marks were distinct scrape marks (T206.46);

6. He went looking for the appellant, but he was not present in the room (T 207.24). He went outside to look for him but could not find him (T 207.41)

Exhibit 4

45. This comprised two photographs from the complainant’s Instagram account . In the first of them, the complainant was wearing a bikini. It was suggested that this was posted on 31 October 2018. But it was later proven, by (Exhibit 11), that this photograph was taken on 19 October 2018.

46. In the second of the two photos, which was commonly accepted as having been posted on 5 November 2018, about a week after the Sylvania incident, the complainant was wearing a short athletic top and athletic shorts.

47. It is fair to say that if any injuries are apparent on the complainant’s left forearm on the face of the photograph of 5 November 2018, they are not conspicuous, although the Magistrate later expressed doubt about the conclusiveness of this photograph.

The appellant’s evidence

48. The appellant elected to give evidence. For the Sylvania incident, this was materially:

1. he did not recall an incident at any point in late 2018, inside Ms Clark's family home, which resulted in the complainant sustaining injuries to her arm and to her knuckles (T17.14);

2. there was no incident in late 2018, inside the family’s home, where he physically assaulted the complainant (T17.21);

3. he said that they had had verbal arguments in late 2018, but there was no physical violence (T17.25);

The Magistrate’s reasons ^[5]

General findings

Directions

5. The Magistrate’s reasons appear in the transcript of the hearing on 7 October 2022. It is that hearing date to which the references in these reasons are made

49. The learned Magistrate stated that he considered the evidence admissible on each count separately. He also indicated that he had considered the detailed submissions made on behalf of the parties, and all the evidence (T 1). The Magistrate directed himself about the burden of proof. He gave himself Liberato and Murray directions and, in connection with the former, specifically directed himself that if he had difficulty believing the appellant’s evidence, but still thought it was true, he must acquit (T 2).

Uncharged acts

50. The Magistrate referred to evidence of uncharged acts (T 2). The Magistrate noted that in relation to what was called the ‘Uber incident’, there was evidence from an Uber driver (Exhibit 22) about the appellant chasing him and driving his vehicle in an erratic way. That particular reference to the evidence was not referred to (or, more pertinently, contradicted) by the appellant in this appeal. The Magistrate also referred to evidence about the appellant using a baseball bat in his home in Melbourne and evidence of punching his brother in a taxi; although the Magistrate did not appear to express findings as to whether those two acts (which were contested) actually occurred. But his Honour made little about these other matters (which, at one point, were relied upon to establish tendency) other than for what it might say about the complainant’s credibility.

51. The Magistrate summarised (T 2-7) the evidence of the complainant, and other prosecution witnesses, on all of the incidents giving rise to the alleged offences.

Acknowledging the challenge to the complainant’s credibility

52. The Magistrate acknowledged that the complainant’s credibility was a live issue. He specifically referred to matters that the appellant’s Counsel emphasised in this hearing, being that: there was evidence to the contrary about the complainant’s assertion about the appellant being verbally and physically abusive every night in Melbourne; that Lewis Curtis disputed her evidence about the appellant assaulting Lewis; that Brandon Smith denied the appellant smashing up a room at home; and the absence of complaint to Karyn Murphy about the appellant strangling or ‘really hurting her’ when the highest the evidence got (from the prosecution’s perspective) from Karyn Murphy was a complaint that she got bruises when the appellant tried to stop her from leaving him. The Magistrate also alluded to submissions made by the appellant about inconsistencies between the complainant’s evidence and that which was contained in her witness statements (T 7).

53. The Magistrate said that he had regard to all of those matters when weighing the complainant’s evidence; and with reference to whether the prosecution established the charges beyond reasonable doubt; but noted that points upon which the complainant had been challenged were (with the exception of the complaint evidence to Ms Murphy) related to the prosecution’s evidence of uncharged acts (T 7-8). The Magistrate also recorded his acceptance of the appellant’s submission that there were inconsistencies in the two witness statements. Nevertheless, his Honour observed that although the first of those statements lacked detail, it was only a relatively short period of time that the complainant provided a supplementary (second) statement (T 8). His Honour considered, at some length, the process of the complainant giving her witness statements. Emphasis was placed upon the officer in charge, Detective Senior Constable Haine’s view that the first statement was inadequate and the complainant’s own view, when she read the first statement, that there was a lot missing (T8-9).

54. The Magistrate alluded to the timing of the Sylvania incident (T 8). Since this was relevant to the appellant’s ‘time was of the essence point’ set out in further detail below, I will defer further consideration of it until I deal with that point generally below.

Complaint evidence

55. The Magistrate recognised that there was some complaint evidence: apart from the evidence of Karyn Murphy, Ms Syred referred, albeit in general terms, to the complainant mentioning to her that she had sustained physical abuse from the appellant but only after breaking up with him (T 9).

56. The Magistrate accepted that there was delay in complaint, or at least complaint to police (noting that she had spoken to her family and friends). But his Honour referred to the complainant’s explanation, relating to a concern of unwanted media attention. The Magistrate regarded that explanation as ‘logical’ and drew no adverse inference against the complainant for perceived delay; adding that, in effect, care needed to be taken against adopting stereotypical notions as to how complainants in this complainant’s position might act (T 9-10).

57. The Magistrate referred to the appellant’s submissions on the specific allegations (T 10).

Credibility findings of the witnesses

58. The Magistrate then turned to his observations of the witnesses. The Magistrate observed that the complainant gave evidence without delay; whilst acknowledging differences between her witness statements; the Magistrate found that she was firm in her evidence and did not waver under cross-examination; and she provided logical explanations for details missing from her witness statements (and delay). Her demeanour did not cause concern and aspects of her evidence were ‘compelling’ (T 10-11).

59. The Magistrate also made positive credibility findings about TC. She did not delay in giving evidence. She responded appropriately to questions and did not waver. Other than her mention of the complainant having injured a nail, she did not add details to the complainant’s case. Her evidence was persuasive (T 11).

60. The Magistrate made further positive credit findings about Renae and David Clark. About the former, there was nothing in her evidence which caused the Magistrate concern. She answered questions appropriately. Despite some initial difficulty due to the profane nature of the language used, she ultimately gave evidence about the language on the phone (relating to the ‘break up allegation’) and gave detailed evidence about the Sylvania incident. She did not embellish. (T 11) David Clark’s evidence was ‘persuasive’ for its detailed nature. He did not pause and did not embellish (T 11).

61. The Magistrate said that nothing that was said by the appellant gave rise to concern, either in his answers or delay; even referring to ‘logical’ answers that he had given (T 11).

62. The Magistrate then addressed all of the incidents (or so much of them which remained after the appellant’s partially successful no case submission).

The Pullman Hotel incident

63. In relation to the “Pullman Hotel incident”, the Magistrate noted that this was a ‘one-on-one’ incident. The Magistrate also accepted that there was a significant difference in the complainant’s account between her first and second witness statements; although the complainant had explained why there were reasons for the discrepancy (and noted that her evidence in Court was mostly consistent with her second statement). The Magistrate noted the appellant’s version, which was consistent with the complainant’s first statement. There was no other objective evidence in the Court. The Magistrate reminded himself of the onus on the prosecution and, in effect, applied the Liberato direction he had given himself, by asking himself whether the appellant’s version was reasonably possible, before determining that it was. This meant that sequences 1 and 9 were dismissed (T 11).

Specific findings about the Sylvania incident

64. The Magistrate repeated that he was satisfied beyond reasonable doubt that all of the witnesses were referring to an incident occurring around 27 and 28 October. I will return to this matter again below when considering the appellant’s ‘time was of the essence’ submission.

65. The Magistrate observed that if he was to accept the complainant’s evidence, and that of other prosecution witnesses, then the element of actual bodily harm would be satisfied by her having sustained a lump to her head and a scratch to her forearm (T 12).

66. The Magistrate acknowledged the appellant’s submission about Exhibit 4 and, inferentially, the photo of the appellant in her athletic gear; however, he determined that the photo was not conclusive of an absence of injuries; noting the angle and distance from which the photo was taken (T 12).

67. The Magistrate referred to a body of evidence from all of the prosecution witnesses to make out the element of assault. The complainant gave evidence about the appellant ‘pushing’ and ‘launching’ against her. There was evidence from Kyla Johnstone hearing noises, including the complainant saying “Curtis stop”. Renae Clark said that she was woken up by the complainant and believing that she was being attacked. She saw the complainant on the ground against the wall, with the appellant on top of her, only 60 centimetres away from her. David Clark also came down and saw the complainant against the wall. The evidence of these other prosecution witnesses, although it fell short of direct eyewitness testimony of an assault being perpetrated, fortified the complainant’s evidence as to what had occurred before they had entered the room. On the basis of this evidence, the Magistrate accepted, beyond reasonable doubt that: (a) the appellant was present in the house that evening; (b) there was an argument; (c) there was a physical altercation; (d) the appellant placed his hands on the complainant’s neck; (e) he pressed his head into her head and pushed her; (f) as a result, she fell over the lounge and ended up against the wall; (g) as a result of the push, she sustained injuries in the lump to her head, scratch to the forearm and wrist. The Magistrate was satisfied beyond reasonable doubt that sequence 3 was made out (T 12-13).

The parties’ submissions

68. I have had regard to parties’ written submissions (MFI 2 and 3, respectively) and oral submissions. I propose setting out the appellant’s arguments in detail.

The appellant’s arguments

Generally applicable submissions

69. Before turning to points that the appellant specifically relied upon in relation to the charges on which he was found guilty, it is convenient to address matters raised by the appellant which were generally applicable to all counts.

70. First, the complainant did not complain to police until approximately 2 and a half years after the last incident. Associated with this submission was that her family members did not speak to police until after the complainant did.

71. Secondly, the Magistrate did not give himself a Markuleski direction.

72. Thirdly, there were general points raised which cast doubt upon the complainant’s credibility or reliability, and which were not adequately addressed by the Magistrate:

1. she gave materially inconsistent accounts of the ‘Pullman Hotel’ incident;

2. she failed to come up to proof on two of the six incidents, giving rise to the Magistrate’s dismissal of sequences 4 & 10;

3. her evidence conflicted with evidence of other witnesses given by prosecution and defence witnesses in relation to:

1. an allegation of daily physical and verbal abuse when visiting the appellant in Melbourne;

2. the ‘Uber incident’ (31 July 2018);

3. her allegation of the appellant assaulting his brother Lewis (12 October 2018);

4. her allegation of the appellant swinging a baseball bat around his bedroom in Melbourne;

5. her meeting with Karyn Murphy, former operations manager of the NRL’s Integrity Unit, on 17 April 2019;

1. the evidence of Jacqui Louder, a psychologist employed by the Melbourne Storm (Exhibit 21);

2. Exhibits 7, 8 & 10 (created 4 to 6 weeks after the Lake Conjola incident).

73. Some of these matters were elaborated upon by Counsel for the appellant further in oral argument.

74. In relation to the complainant’s allegation that she had received physical and verbal abuse from the appellate daily in Melbourne, this was a matter that was contained in the complainant’s first witness statement. It was not however, an assertion that was expressly repeated in her evidence in chief. Nevertheless, Counsel for the appellant argued that the assertion might be taken to have been implicitly adopted in circumstances where that assertion, and other assertions (including that she had yelled out ‘Stop, you’re hurting me’) contained in her first statement were referred to her, in cross-examination in the Local Court, and she clarified who she was referring to when she had asserted in the police statement that no one would help her.

75. On the matter of the first statement, Counsel for the appellant drew the Court’s attention, in some detail, to the complainant explaining omissions from her evidence in chief, relative to what she said she had told Leading Senior Constable Ford in the preparation of her first witness statement. That statement was settled on 22 November 2021, the Court was informed, after a concern about a screenshot relating to an Instagram post; and it was on 16 November 2021 that the complainant (in the company of her mother) attended Sutherland Police station to given an account about ‘historical domestic violence matters’. It was not the case, as the Crown contended, that the content of that earlier police statement, in terms of its completeness or accuracy, was affected by a preoccupation in her applying for an Apprehended Domestic Violence Order even if at the time that the witness statement was proximate to her applying for that order. LSC Ford was a police officer particularly experienced in dealing with allegations of domestic violence and there were missing from that first statement details (such as actual injuries and witnesses to incidents) which would, it was suggested, naturally appear in a witness statement if they had occurred. An example of this was the injuries sustained from the Sylvania incident. That detail was missing from the first police statement.

76. Later in reply, in response to a submission raised by the Crown about the significant limitations upon the process of compiling a first witness statement, and the extent to which it could be regarded as an exhaustive statement of the complainant’s account, Counsel for the appellant argued that what was significant (from the point of view of the complainant’s credibility) was not what LSC Ford asked the complainant, but her multiple assertions, not supported by the police officer, of what she had told him in relation to concerning details of the subject incidents.

77. So too in relation to the description of the ‘Uber Incident’. In her first witness statement, she had not asserted that she was assaulted by the appellant. The complainant agreed with that but said that she had mentioned this to LSC Ford. Also in relation to the ‘Uber incident’, Counsel for the appellant noted that Scott Drinkwater had given evidence of the appellant following the complainant in his own car after the complainant had taken an Uber ride; but that this was the only incident, resembling, an argument that he had heard between the appellant and the complainant. It was “unusual” and he had never heard the complainant yelling out “Stop you’re hurting me”, or damage to the furniture in the bedroom in the house that the complainant had stayed with the appellant.

78. In oral argument, Counsel for the appellant also emphasised Karyn Murphy’s evidence. Although she confirmed complaints about the complainant being bruised by the appellant, Murphy said that she had not been informed by the complainant about her being strangled by the appellant or him having “really” hurt her. She did not recall being told by the complainant that the appellant had threatened to kill her. She had said in her police statement that neither the complainant (nor her mother) provided details of acts of physical abuse at all, other than the complainant saying that she had suffered bruising as a result of the appellant (T 229).

79. Murphy’s evidence was said to be especially significant since this was the most contemporaneous evidence of the complainant reporting to a third party; although Counsel for the appellant accepted that Savannah Syred had indicated in her evidence (Exhibit 18, par 6) that after the break-up had occurred (in April 2019), the complainant had told her about being subject to physical abuse (by the appellant).

80. Later, in reply to a Crown submission, Counsel for the appellant also argued that the Court should reject the Crown’s thesis that a reason for the complainant not supplying details of physical abuse was an indication supplied by Ms Murphy that she would be best served not to provide details since if they were passed on to her, she would be required to take certain action. This proposition was not put to Ms Murphy and it was contrary to the evidence that the witness had given (T 229) which did not convey that there was any indication given to the complainant of any impediment to her disclosing details of physical abuse.

Other submissions regarding the Sylvania incident

81. Addressing the Sylvania incident more specifically, the appellant submitted that the complainant gave materially inconsistent accounts. On her first account, she did not mention that she sustained any injury and did not suggest that anyone witnessed the incident. For this inconsistency, she blamed the police officer.

82. There was no witness to the alleged assault. That meant that her evidence needed to be accepted beyond reasonable doubt which, in the circumstances, was a standard that the prosecution could not attain.

83. A significant issue arose about the extent of the harm, having regard to the photo of her appearing in an athletic outfit a week later (in Exhibit 4) and the evidence of Renae Clark’s observation of skin being ripped off her daughter’s left forearm. There was conflict in the description of the injuries as between the complainant and her parents.

The ‘time of the essence’ point

84. The appellant submitted that in the way that the parties had conducted the case, the Magistrate wrongly rejected the defence submission, at the conclusion of the prosecution case, that time was of the essence for this charge. The prosecution did not prove that the incident occurred between 12:01am and 5:00am on 28 October 2018.

85. On this ‘time was of the essence’ point, Counsel for the appellant argued that the parties were joined on the significance of the date for the offence in question. That occurred in circumstances where:

• the prosecutor had nominated a date for the Sylvania incident, being 28 October 2018. Indeed it did so by application to amend at the outset of the hearing;

• the complainant could not recall any particular date when the incident occurred;

• the appellant had, by the two photos that were part of Exhibit 4, effectively shown that there was doubt that she sustained the injuries she alleged contemporaneously on 28 October 2018;

• the prosecutor had engaged with the issue of the date when the incident occurred by:

• effectively disproving (through the use of Exhibit 11) the date when the first of the photos for Exhibit 4 (where the complainant was wearing a bikini on the beach) was taken; and

• couching the content of questions to other prosecution witnesses (the complainant’s parents) in a way that refrained from specifying a date when the Sylvania incident occurred;

• the prosecutor had eschewed the option (which would have been objected to anyway) of seeking leave to amend the Court Attendance Notice to identifying a date range for when the alleged offending occurred.

86. In his reasons for verdict, the learned Magistrate noted that in the complainant’s first witness statement, it was said that the Sylvania incident occurred on 27 October and that other prosecution witnesses were not specific in identifying a date. The Magistrate stated that notwithstanding the other witnesses omitting to nominate a date, he was satisfied, beyond reasonable doubt, that they all were speaking of the same incident of which the complainant complained (T 8).

87. Counsel for the appellant argued that the tender of the photograph was analogous to an appellant’s alibi notice. The only purpose of the tender for Exhibit 4 was to engage consideration of when alleged injuries occurred. The complainant had given equivocal evidence about a date although, Counsel accepted, at its highest, it could be accepted that she was identifying 27 or 28 October. But the prosecutor did not lead evidence from its own other witnesses to support that weak indication from the complainant.

88. More generally there was doubt about this incident.

Consideration

The appellant’s ‘time of the essence’ point

89. The Magistrate was directed by the parties in argument on this point to the authorities in R v Stringer (2000) 116 A Crim R 198 per Grove J at [20]-[22] and WGC v The Queen (2007) 233 CLR 66 (“WGC”).

90. It suffices, for present purposes, to refer, with respect, to the analysis of Crennan J in WGC, who was in the majority, for the statement of principles at [155]-[158] (citations omitted):

“155 It is undoubtedly good practice to frame a count in an information with "all such specificity as to time" as circumstances permit so as to clearly identify for the accused the charges with which he or she needs to deal.

156 However, the general rule is that the date of an offence is not a material particular and need not be proven, unless a date is "an essential part of the alleged offence". The terms of (the relevant statutory provision) were consistent with the general rule.

157 Exceptions to the general rule occur when the conduct of a trial has the effect of rendering a date a material particular or vital as, for example, when an alibi is raised by the defence in respect of a particular date. Equally, the defence, or both the prosecution and the defence, may conduct a trial by treating the date of an offence as not material.

158 Whether or not a date of an offence is a material particular in a case involving sexual offences where the age of the complainant is relevant will depend on the circumstances of the case, including issues of procedural fairness. For example, it would be erroneous to describe the time of an offence (under s 49(3)) as "immaterial" if a jury were left with a belief that it could bring in a guilty verdict even if a complainant were above 17 years of age, or where the prosecution led evidence of different and conflicting versions of the same incident, or evidence equally capable of referring to a number of different occasions. However, there were no such issues of procedural fairness here, where the appellant admitted the alleged acts of sexual intercourse with the complainant when she was under 17 years of age.

91. It was common ground that the date of the incident was not essential to this particular offence. The appellant had to fall back on the exception identified by Grove J in Stringer that was approved by Crennan J in WGC, that is that conduct at the trial effectively rendered the date a material particular.

92. As the views of the other members of the majority in WGC, Hayne and Heydon JJ indicate, much of the debate centres around procedural fairness and the need to ensure a fair trial for the accused, in particular.

93. It is true that at the outset of the hearing, the prosecutor successfully applied (without objection) to amend the particulars to sequences 2 and 3 to substitute 27 October 2018 to 28 October 2018. As indicated, an essential element to sequence 3 was that actual bodily harm was occasioned (by the assault). But the appellant did not suggest that the substitution of one date for another in the particulars of the offence converted the date into being material.

94. The procedure in the Local Court did not necessitate the appellant’s Counsel giving an opening statement, but in this case Counsel for the appellant did provide an opening (22/8/22, T 6-8). In it, Counsel gave a brief account of the appellant’s position in respect to each of the incidents which Counsel had prepared a table about (MFI A, which was not before this Court). The Sylvania incident was the second incident in order. After referring to the first of the incidents in order – the Pullman Hotel incident, which was the night of the Rugby League Grand Final (1 October 2018) – Counsel for the appellant said (about what came to be described as the ‘Sylvania incident’) the following:

“Later that month at the complainant’s family home in Sylvania, they argued, and the argument resulted in the accused walking out of the house, before returning and leaving the house altogether with the complainant in an Uber” (emphasis supplied)

95. It may be noted that the reference to “later that month” may be read, contextually, as a reference to the month of October 2018, it being the same month in which it was alleged that the Pullman Hotel incident occurred. Counsel for the appellant gave no indication that any particular date within the month of October was material from his client’s point of view. His position, emphasised (from T 8.11), was that although there were arguments between the appellant and the complainant, “at no stage did he ever do any of these things”, i.e. the acts of physical abuse alleged, relevantly, in the Sylvania incident (sequences 3 and 2). By his Counsel’s opening, the appellant was signalling to the prosecutor and the Court that he was indifferent to whether the offending occurred on 27 October or 28 October or some other particular date “later” in October, being at least after 1 October 2018, when the Pullman Hotel incident occurred.

96. At T 20.14, the prosecutor directed the complainant’s attention to “the evening of 27 October 2018”, when the complainant was at her family home in Sylvania. No objection was taken to his doing so. Although the question raised of the complainant, in her evidence in chief, at T 20.45 was leading, in nature, it was not objected to. The evidence continued as follows:

“Q . On 27 October 2018 you were at home. Do you recall an incident involving Curtis on that evening where he came –

A. Yes.

Q. What can you tell me about it?

A. I believe that was around the time that we had kind of – we were a little bit rocky .. he went out with friends, and I went to just one of my friend’s houses … So, just that night – if this is – I’m so sorry, but with the dates wrong – referring to the wrong date here. But I’m pretty positive that this was the date that –

Q. That’s fine. What can you tell me about this particular incident that you’re recalling?

A. Yeah, so I got home quite early. …. I just had a quick shower and jumped in to bed and I was just – I fell asleep to my TV playing that night. And Curtis would start coming in – I’m not too sure how much later because I was asleep, but he did end up coming in a lot later.

And he was really intoxicated … he just laid down beside me .. and just cuddled into him..

And then he ended up – I don’t even think it was five minutes later, he stood up on the side of the bed in a rage ….” (emphasis supplied)

97. This was not a case, like R v Kennedy (2000) 118 A Crim R 34, where the complainant was insistent upon the offence occurring on a particular day. The complainant then went on (T 21-22) to describe his assaulting her. In my view, the net effect of this evidence, in terms of timing, was that the complainant was saying that the context for the incident started on the evening of 27 October, that she fell asleep at a certain point she did not nominate and sometime thereafter – she was not sure – he assaulted her.

98. Arguably, the first possible indication that the appellant was attempting to make time of the essence was during the course of Counsel for the appellant’s cross-examination of the complainant (commencing at T 77). Initially, Counsel for the appellant cross-examined the complainant for the point of proving that she had omitted to refer in her first witness statement to certain injuries which she said she had sustained as a result of the assault in the Sylvania incident (T 77-78).

99. But at T 79-80, the course of the cross-examination shifted. The complainant was shown the two photographs that later comprised Exhibit 4 and she was asked to (and did) assent to the proposition that they were posted to her Instagram page on 31 October 2018 and 5 November 2018. It was not put to the complainant that what was depicted in those photographs and the assumed date that the photographs were posted to Instagram might suggest that when she agreed (with what turned out to be varying degrees of confidence) with the prosecutor’s question that an incident had its provenance after she and the appellant had been out at separate places on the evening of 27 October and that he got into bed with her “a lot later” (T 21.17) after she had returned home that evening; that she was mistaken in such belief. Nor was it put to her, more directly, that the photographs indicated that she had suffered no injuries at all on that date or any other date in close proximity to it. The complainant was not invited to comment on the forensic significance of the photographs insofar as it bore upon her earlier evidence, in which she assented to the question of the prosecutor that the background to the Sylvania incident (she and the appellant going to different places that night before both returning to her home, and their bedroom, in Sylvania) occurred after she had gone to bed on the evening of 27 October, and the appellant had got home “a lot later”.

100. In those circumstances, I am not persuaded that by the conduct so described, the appellant’s Counsel did put the prosecutor on notice that the appellant was intending to raise, as a material particular, the date when the assault underlying the Sylvania incident occurred.

101. As Counsel for the appellant indicated, the prosecution did obtain a photograph (Exhibit 11) to effectively disprove the suggestion that one of the two photographs in Exhibit 4 was taken on 31 October 2018. I agree with the Crown that had it not done so, the Magistrate would have been left with the misleading impression that there was a photograph, 3 days after an assault that was alleged to have occurred on 28 October, suggesting doubt as to whether she had sustained injuries.

102. I also agree with the Crown that by tendering Exhibit 11, the prosecution was not joining issue with, or adopting as material, or as an essential particular, that the assault had to have occurred on 28 October 2018. Later, the prosecution adduced evidence from Renae Clark about being woken up at 2:00am or 3:00am on that date. When that evidence was considered alongside the complainant’s evidence about the provenance for the Sylvania incident occurring on 27 October, there was already a firm foundation for the Magistrate to find that the incident occurred in the early hours of 28 October. At any rate, having obtained some evidence from the complainant, which may be accepted as not compelling, that the background to the incident from circumstances commenced on the evening of 27 October 2018, from its point of view, the prosecution would not likely have been troubled about the forensic impact of the photos comprising Exhibit 4 and whether they cast doubt as to whether the alleged assault occurred on 27 October or 28 October 2018 or even some time earlier that month. I agree with the Magistrate’s view (T 240.16) that the two alternative dates were very close in time. It was vastly different from the scenario concerned in WGC where the forensic dispute centred on whether sexual misconduct occurred in 1986 or in 1989. That being so, I do not accept that by tendering Exhibit 11, the prosecutor was adopting as a material element of the offence that the assault underlying the Sylvania incident strictly occurred on 28 October 2018 rather than 27 October 2018.

97. Nor do I accept that by refraining from asking other prosecution witnesses their recollections of specifically what date the incident occurred, this amounted to an implied adoption by the Crown of the materiality of date and adoption of the particular date as an essential element to prove. The complainant had tied the incident to her attendance at a friend’s party in a period of an on-again-off-again relationship. It was inherently likely that she would have a stronger recollection of dates (fallible as she accepted it was) than her parents, or Kyla Johnston, for whom there was no reason that the date of the incident would be memorable. There was no particular forensic reason why the prosecutor would wish to pin these witnesses down to a date. Indeed, in my view, the absence of inquiry from the other prosecution witnesses about date was consistent with the prosecutor’s position that the date when the Sylvania incident occurred was not material.

98. There is force in the Crown’s submission that the circumstances do not fit within, or are analogous to, the two paradigm cases where a date is adopted as a material element: in the prosecutor’s case, where a complainant insists a crime happened on a particular date and in the accused’s case, an alibi. In both categories, the conduct is definitive and unequivocal in an assertion (or denial) that the crime happened on a particular date. A suggestion that the Crown could not prove actual bodily harm, being marks or a scratch on a forearm and wrist, being occasioned by an assault on 28 October 2018 rendered that date ‘material’, not only ignores the harm that the Magistrate was satisfied did result from an assault (the lump on the head), but overlooks the obvious possibility that the marks on the body had disappeared within a week. The prosecutor was not on notice by the accused’s Counsel’s conduct that his position was to treat the date as a material particular.

99. Moreover, I do not consider that there was any prejudice suffered by the appellant if the prosecution was able to rely upon the offence occurring either late in the evening of 27 October or early in the morning on 28 October^[6] . If the point about the Instagram photos not revealing any injuries on 31 October 2018 (when it was erroneously believed that the complainant posted a photo of herself for the first time) or 5 November 2018 was a good one, it would not have mattered whether the assault occurred on either 27 October (in the late hours) or 28 October (in the early hours).

    6. Fantakis v R [2023] NSWCCA 3 per Dhanji J (Ward ACJ and Rothman J agreeing) at [878]

100. The exception in s 16(1)(g) of the Criminal Procedure Act 1986 (NSW) is not engaged. The conduct of the trial did not effectively render the date a material particular. The Magistrate did not err in rejecting the no case submission on this point.

The challenge to the complainant’s credibility

107. In his argument, as I understood him, Counsel for the appellant conceded that no single point that he had raised about the complainant’s credibility, viewed in isolation, was fatal to acceptance of her credibility. Nor did Counsel for the appellant argue that the Magistrate’s positive credit finding about the complainant, to the extent that this was based upon his observations of her demeanour, was controverted in accordance with Fox v Percy principles. Nor was there any indication of any proposition put by him to the complainant in the Local Court hearing that she lied or was dishonest in her allegations or evidence more generally.

108. As indicated, the Magistrate plainly did consider the opinions of other witnesses about the nature and extent of the relationship between the appellant and the complainant, he did consider the Pullman Hotel incident; he did consider the ‘Uber incident’; he did consider omissions or suggested inconsistencies in the complainant’s evidence, when compared to the content of her witness statements, in his assessment of the credibility of the complainant and, more generally the strength of the prosecution’s case. Further, Counsel for the appellant accepted, during the course of this hearing, that in relation to ‘uncharged’ acts, the Magistrate was not obliged to accept the prosecutor’s evidence on those acts beyond reasonable doubt.

109. The complaint, at bottom, was one of the adequacy of the Magistrate’s reasons for not forming an adverse view of the complainant’s credibility or reliability based upon the cumulative effect of the matters that the appellant’s Counsel brought to the Magistrate’s attention.

110. In my opinion, the Magistrate was well justified in not being persuaded by the appellant’s submission that there was such doubt about the complainant’s credibility as to preclude acceptance of the prosecutor’s case of each of the charges beyond reasonable doubt.

111. As to the Pullman Hotel incident, I accept the Crown’s submission that the Magistrate’s dismissal of the sequences associated with that incident did not imply rejection of the complainant’s account of what occurred, with reference to a suggested inconsistency with an earlier witness statement, but represented a standard application of the Liberato direction; which was that when weighing all the evidence, including the appellant’s account, he found that account was reasonably possible.

112. As to the Magistrate’s dismissal of sequences 4 & 10, I also accept the Crown’s submission that a memory failure in connection with sequence 4 was not fatal in a context where the complainant did not profess an infallible recollection of all of events she described and, in relation to sequence 10, the Magistrate substantially accepted her account in many respects.

113. The appellant’s argument about error arising from the omission to administer to himself a Markuleski direction is rejected. First, it is patently obvious that the Magistrate separately considered the evidence and argument on each charge. Secondly, even if, for the sake of argument, the Magistrate was obliged to direct himself, as a Judge of this Court might when sitting alone in a trial, there was no error. This is because the basic premise underlying the Markuleski direction – that the Magistrate’s rejection of some charges (sequences 1, 9, 4 and 10) was because of doubts about the complainant’s reliability – was not applicable.

114. The complainant’s statement about being subject to daily physical and emotional abuse appears to me to have been an exaggeration. But I do not place much weight on that. She was a young adult, and if the content of her (predominantly) love letters to the appellant were anything to go by, immature and unworldly. The complainant did not repeat the assertion when she gave evidence (either on oath or affirmation) in the hearing. The assertion was made in the context where the process was in train to obtain an Apprehended Violence Order, which was the complainant and Renae Clark’s paramount concern (Exhibit 12), at a point where the complainant was inferentially fearful for her safety from the appellant and there was a reason why sub-consciously she might exaggerate.

115. The appellant’s criticism of the complainant’s account about the ‘Uber incident’ dovetailed with a general point he made about the omissions from the complainant’s first witness statement and, more specifically, the complainant’s tendency to attribute omissions in that statement to LSC Ford. I tend to agree with Counsel for the appellant that the forensic significance of this rested more in what the complainant asserted she had told LSC Ford rather than his perceived failures to ask relevant questions of her. But this still does not detract from the force of the Crown’s argument about the limited purpose of the making of her first statement when the police and the complainant were fully conscious that the first statement was only the starting point of the recording of her evidence and was inevitably going to be supplemented by a much more fulsome supplementary witness statement.

116. As to the differences between the complainant’s account of the appellant swinging a baseball bat in the bedroom, or the appellant assaulting his brother, and the acts of friends of the appellant (and the appellant himself), this does not diminish her credibility. They are simply differences in recollections between the complainant’s account and the accounts of two witnesses (Brandon Smith and Lewis Scott) who were patently partial to the forensic interests of the appellant.

117. As to Karyn Murphy’s evidence, the position was slightly complicated. I do not accept the appellant’s submission, perhaps made implicitly, that it would have been expected that the complainant would have given Ms Murphy a full and frank account of all the incidents of physical abuse that she alleged against the appellant (and the receipt of a death threat). There was nothing to suggest any relationship of confidence between Ms Murphy, who occupied an important office associated with the professional sport of which the appellant was a participant, and the complainant. She was not a friend to the complainant. The idea of speaking to Ms Murphy was that of Renae Clark; not the complainant; and even then it was preceded by Renae Clark indicating her hesitation in approaching the NRL’s integrity unit unless she could be assured that there were no further attempts (presumably from the appellant) to approach or contact the complainant (Exhibit 12). In short, it appears that when the complainant and her mother eventually saw Ms Murphy, the complainant (especially) was guarded. Further, as Ms Murphy acknowledged, the complainant and her mother had indicated to her that they had concerns about reporting to police and the media. This was not because of uncertainty in the complainant’s mind about what the appellant had done to her, as it was explained to Ms Murphy, but, instead, they were concerned about the appellant’s mental wellbeing. Further still, I accept the Crown submission that a notation which Ms Murphy made (Exhibit 23, p 2) to the effect that if the complainant provided details to her about abuse, Ms Murphy might be forced to report the matters so disclosed to police. That said, I do not accept the Crown’s apparent submission that by her conduct, Ms Murphy encouraged the complainant not to disclose details. She was simply pointing out a consequence if details were supplied.

118. In this context, it was, in my view, hardly surprising that the complainant might think that the meeting with Ms Murphy was not the appropriate forum to ventilate specific details of the abuse – physical or emotional – she believed that the appellant had perpetrated against her.

119. In my view, what fell from Ms Murphy, on balance, actually enhanced the complainant’s credit. Not only did she confirm reports from the complainant about emotional abuse but she also ventured an opinion (amply supported by other evidence which I will return to) that it was sourced in the appellant’s jealousy of her; which itself was borne out by the disclosure that she sustained bruises when he had tried to stop her leaving him at times during the relationship. The mere reference to bruising, though not elaborated in detail in the meeting, was a sign of a jealous man exhibiting aggression towards his partner.

120. There were problems with Jacqui Louder’s evidence. First, it was inherently weak. Her evidence about not seeing any physical harm occurring between the complainant and the appellant was hardly surprising (and no more surprising than the evidence of Brandon Smith or other Balwyn housemates not seeing any physical violence themselves): no one suggested that any aggressive urges or impulses in the appellant were entirely uncontrollable by him in the presence of others, including Ms Louder. Secondly, she knew enough about the relationship to warrant her concern about the complainant feeling ‘emotionally’ safe in her relationship with the appellant; yet did not elaborate upon her reason for being concerned for the complainant’s safety, whether that was emotional or otherwise. Thirdly, there is reason for believing that Ms Louder had a greater knowledge of what was occurring in the relationship than that which she had indicated in her statement. I agree with the Crown that Karyn Murphy’s evidence (Exhibit 23) indicates that the complainant, or her mother, had informed Ms Louder about the ‘whole story’ and that it was scarcely credible that Ms Murphy knew more than Ms Louder. When Ms Louder referred to her understanding that the appellant and complainant had an ‘emotional relationship’, she did not elaborate further on what she meant by that, including her opinion as to the source of the difficulties between the two of them. Fourthly, Renae Clark was patently concerned about the extent of the assistance that Ms Louder had given to the complainant (Exhibit 12). Finally, it occurred to me that, whether intentional or not, Ms Louder was inherently in a position of actual or potentially conflicting duties: a duty, as the Melbourne Storm’s psychologist, to the appellant and as someone to whom the complainant turned. Ms Louder’s evidence was also a weak reed in challenging the credibility of the complainant.

121. As to the complainant’s handwritten letters to the appellant (Exhibits 7, 8 and 10), in which expressions of love are professed by the complainant towards the appellant, in my opinion, to posit that a person’s profession of love for another person is antithetical to being abused by them is to invoke outmoded stereotypical preconceptions of how persons who claim to be victims of domestic abuse respond. The complainant’s profession of love for the appellant were manifested in multiple other ways through the course of the evidence, including her responses to his threats to kill himself and even her reluctance to report to police because of her concerns for his mental wellbeing. Before moving from this topic, I note also that the content of Exhibit 7 was another item of proof to establish the appellant’s jealousy towards the complainant as a feature of their relationship.

122. A final point concerned the complainant’s delay in complaint until two and a half years after the last alleged incident. It is true that a timely complaint about an incident can enhance a complainant’s credit and even afford additional evidence of the underlying truth of the complaint, but the converse does not logically apply. I agree with the Magistrate’s finding that cogent explanations were supplied for the delay in reporting to the police. A concern about unwanted media attention towards complainants of domestic violence allegedly perpetrated by prominent Rugby League players was also warranted. A concern about the mental health upon the appellant from bringing complaint was also warranted. This explanation was not a reconstruction. It was given to Ms Murphy. As was also apparent in Renae Clark’s text message to Frank Ponissi (Exhibit 12), the complainant’s (and her mother’s) main concern was to prohibit contact with the appellant; not to get him into trouble with the police.

123. It is often the case in trials that complaint evidence comes from family relatives, or friends, or persons in a position of confidence or trust with complainants. In this case, the complainant had no need to verbally report what occurred to her: her parents and a sister were privy to some of the incidents of which she complained. The decision to delay complaint was not entirely that of the complainant but, I infer, was contributed to by discussions with her parents, especially her mother about an appropriate course of action.

124. Overall, the matters that the appellant relies upon to dent the complainant’s credibility or reliability are unpersuasive.

Consideration of the evidence as a whole

The nature of the relationship between the appellant and complainant

125. Before moving to specific incidents, I think it is pertinent to reiterate that the evidence as a whole leads me to a firm view that the relationship between the complainant and the appellant was not just ‘tumultuous’, as the appellant’s Counsel would have it, but was punctuated by emotional abuse exhibited by the appellant towards the complainant. This was borne of jealousy towards the complainant. The jealousy had two aspects, in particular. First, there was jealousy towards the complainant’s own Instagram public profile. Secondly, there was a jealous concern that the complainant would leave the appellant.

126. I agree with a submission made by the Crown that, sadly, part of the emotional abuse concerned the appellant conveying to the complainant threats against himself which were accompanied by indications to her that she was to blame for his troubles. This had the design and, as it turned out, effect of instilling emotional guilt in the complainant and it is perhaps not an exaggeration to characterise it as a form of emotional blackmail.

127. I find, further, again before turning to the incidents in dispute, that the appellant had at least manifested acts of aggression against the complainant to the extent that during the course of their relationship he physically occasioned bruising to the complainant; especially at times when the complainant had indicated that she might leave him. He smashed his own mobile phone. At certain times, he evinced a degree of possessiveness towards her and made unnecessary and unreasonable demands that she comply with his wishes.

128. With the limitations of a Judge reviewing the record and noting the Magistrate’s natural advantages of seeing all of the witnesses and having the opportunity to consider all of the evidence, I find that the complainant was a witness of credit.

129. In the context of the relationship, as I have found it, I consider that her account of the assault was inherently plausible. His jealousy and fear of her leaving her, as depicted in her account of the lead up to her allegation of the assault, was consistent with my findings of the nature of that relationship and his jealous nature. So too was his threat to kill himself.

130. I accept her evidence that he was intoxicated. This would have served to further loosen any inhibition he had beyond the jealous and state of rage that he was in. She was not complying with his wishes.

131. Her evidence about being assaulted, though not directly seen by eyewitnesses, was nevertheless supported by others. Her cousin and mother both heard her tell the appellant to “stop”. Her cousin also heard ‘thuds’. Renae Clark heard the appellant “grunting”. Her parents came upon her. Renae saw the complainant against the wall, with the complainant hovering over her.

132. Kyla Johnston saw the appellant walking out the door. David Clark could not find him.

133. I take into account the appellant’s evidence, but it comprised, in substance, partly a state of non-recollection (of the complainant suffering any injuries) or bare denial (that he assaulted her). The evidence to the contrary is overwhelming.

134. I am satisfied beyond reasonable doubt that each of the constituents of an assault, referred to in paragraph 11 above, were established.

135. The complainant gave evidence of having an egg on the back of her head and a sore forehead. Renae Clark’s evidence was slightly different, but she also found a lump and redness of the forehead. Such injuries were consistent with the complainant’s description of the assault.

136. I am also satisfied beyond reasonable doubt that the element of actual bodily harm being occasioned (by the assault) is also made out.

137. I will now separately consider sequence 7.

The Lake Conjola incident

The evidence

The complainant’s evidence

138. The complainant gave the following evidence in relation to the Lake Conjola offence:

1. The complainant, her sister TC and the appellant were staying at her uncle (Royce Clark’s) property at Lake Conjola with her uncle’s friends, Shelley and Paul Innes (T35.46);

2. The complainant and the appellant were sleeping in the downstairs bedroom and TC was sleeping upstairs (T36.11);

Renae Clark’s evidence

170. Ms Clark said that she was present during the relevant phone call. Her evidence in respect of this phone call:

1. The appellant was saying throughout the phone call: “You’re a fucking whore, you’re nothing but a fucking slut. I’m going to fucking kill myself. It’s all your fucking fault.” He was saying “If you don’t fucking come back to me I am, this is it, I’m going to fucking hit this tree that.” “I’m going to fucking hit this telegraph pole. It’s all your fucking fault cause you’re such a fucking slut” (T158.10);

2. The complainant wanted to hang up but Renae Clark told her to stay on the phone to get him to safety (T158.6);

3. The appellant said to her, “No other, no other, no other thirsty fuck is ever going to have you. I’m going to kill myself. I’m never going to leave you for any other thirsty fuck. You’re coming with me, that’s it” (T158.38);

4. He repeated: “I’m going to get in the car, I’m coming up and I’m going to fucking kill you so no one else can have you. Do you fucking hear me you fucking whore? I’m going to” (T158.44);

5. Asked by the prosecutor how the phone call ended, Ms Renae Clark, said she heard him say “I’m going to fucking kill you, you C-U-N-T.” Then she heard a crash, and the appellant grunting and moving around. And she could hear him mumbling “its all your fault” (T160.7 – 160.14);

6. In cross examination Renae Clark denied that she might have heard the appellant say he was going to kill himself, rather than a threat to kill the complainant (T166.23);

7. When asked whether she had a negative attitude towards the appellant she said that she actually felt very concerned for the appellant, for trying to take his own life and her daughter with him (T166.48). She said that she was very upset with him for putting the complainant in that situation repeatedly (T167.7);

8. During her evidence, Renae Clark was uncomfortable with saying the words that she identified the appellant said over the phone, due to their profane nature (T157.47);

9. The witness was told to use the actual language she heard and she provided that evidence. It is evident from the transcript that retelling the language used was upsetting to Renae Clark as she accepted the offer of taking a moment, and a tissue. (T158.80).

171. The Crown submitted that Renae Clark’s hesitation to use the kind of language she states she heard, and her distress when repeating the abusive language allegedly used against her daughter, reflect the significance of this event to her, and grounded her ability to recount it in detail, despite some time having passed.

David Clark’s evidence

172. Mr Clark said that he was present during the phone call. His evidence may be summarised as follows:

1. He and Renae heard the complainant screaming so they went into the room (T208.13);

2. He heard “horrible abuse and threats” (T208.44);

3. He said that “there was references of slut, whore, "I'm going to kill you, I'm going to kill myself." The appellant said this numerous times and was screaming it (T209.3);

4. The man saying these things was the appellant and that the complainant was trying to calm him down (T209.12);

5. The appellant said "I'm going to fucking kill you. I'm going to kill my fucking self. I don’t want to live, I don’t care about football, I just don’t want anymore" (T209.17);

6. When he heard the abuse directed at the complainant, he tried to get the phone off her, but she wouldn’t let him and Renae said “Wayne, she’s the only person that’s going to be able to stop him” (T209.29);

7. He heard a crash and then “moaning and grunting” (T209.39);

8. He heard the appellant repeat the words “I’m going to fucking kill you” at least ten times (T209.39);

9. During cross examination, when taken to the time between the event and him making a statement, he said that the phone calls were “not something you forget” (T211.15);

10. During cross examination, he did not accept that the words said at the end of the call were actually “I’m going to kill myself” and said that he heard the appellant “say that numerous times during the conversation and there was different things that were said, the ways he was going to kill himself” (T212.46).

The appellant’s evidence

173. During the hearing of the conviction appeal, Counsel for the appellant referred to his client’s evidence at the hearing in the Local Court. He agreed that by late March 2019 his relationship with the complainant had broken up (T 21.11) He referred to some other issues, not associated with the complainant, causing him grief. They were associated with his playing form on the football field (4/10/22, T 21.13 – 21.39). He had been in Sydney, playing a game in Bathurst after which he returned to Melbourne. Upon his return to Balwyn, he observed that the complainant’s things were packed into a box (T 21.50- 22.3).

174. He said that he spoke to the complainant for about 40 minutes. She was in Sydney. He accepted that he was extremely upset and he admitted swearing (T 22.17). He agreed that he conveyed to the complainant that he had thoughts of hurting himself. But he denied saying, at any point, saying to her that he was going to kill her (T 22.30). He explained that just before he drove his car into a tree that he had seen, he screamed as loud as he could “I’m going to kill myself … Cunt” (T 22.39).

Scott Drinkwater’s evidence

175. This witness recalled that on 31 March 2019 he was sitting on the couch with the appellant (and another housemate). The complainant’s clothes had been placed in a box. Mr Drinkwater followed the appellant driving his car before the latter car hit a tree.

Savannah Syred’s evidence

176. This witness recalled the complainant informing her in March or April 2019 that they had broken up and that the complainant asked her to pack up her things. Ms Syred was not surprised to hear that they had broken up. She recalled the appellant asking her where she had put the complainant’s stuff and she responded by saying that she had put the complainant’s stuff in the spare room. She observed the appellant taking the boxes and taking them to his car.

177. Ms Syred also recalled later checking her mobile phone and finding messages from the complainant to the effect that the appellant was going to throw away her stuff. She also recalled speaking to the complainant and her telling her that the appellant was going to try to kill himself.

178. Ms Syred also stated (paragraph 24) that the appellant had Brandon Smith’s mobile phone since he had smashed up his own phone the night before.

Karyn Murphy’s evidence

179. This was referred to earlier. To repeat, Ms Murphy denied being informed by the complainant, or Renae Clark, that the appellant had threatened to kill her; as distinct from killing himself.

Jacqui Louder’s evidence

180. Ms Louder stated that on 31 March 2019 she received a text message from the complainant, in which the latter expressed concern about what the appellant was “using” and referred to the appellant’s statement that he was “going to kill himself”.

Exhibit 12

181. On 8 April 2019, Renae Clark sent a text message to a person associated with the Melbourne Storm club, apparently Frank Ponissi. Mrs Clark thanked the latter for forwarding to her the contact details of Karyn Murphy. She then wrote the following statement:

“Providing there are no further attempts to approach or contact Tay, at this point we do not see the need to speak to the NRL integrity unit and would respectfully decline to comment on these circumstances if this situation arises.”

182. Mrs Clark then went on to write that “We” wished nothing but the best for the appellant, and hoped that he accepted the help being offered to him.

The Magistrate’s reasons

183. The Magistrate initially directed himself as to the elements of this offence. His Honour reasoned that if the appellant actually said the words attributed to him – Fuck you, it’s your fault. I’m going to kill you. I’m going to kill you cunt” – then those words would facilitate a strong inference of an intention to cause apprehension in the complainant about harm. The Magistrate added that if the complainant was telling the truth when she said that she believed that the appellant was going to hurt her real bad or kill her’, this would satisfy him of the element of intention for the purposes of the element of intimidation. The appellant’s intention was to be inferred from all the circumstances (T 14).

184. The Magistrate emphasised the way that the appellant had run his defence to this charge. His case was that he only threatened himself. That being so, the Magistrate reasoned, the only issue was whether the words which the prosecutor alleged were spoken by him were actually spoken by him. The Magistrate said he had regard to the evidence on this issue, including the evidence of the appellant (T 15).

185. The Magistrate alluded to issues identified by the appellant as casting doubt upon the allegation. These included an absence of complaint by the complainant to the Melbourne Storm (an apparent reference to Jacquie Lauder). Ms Syred’s evidence went no further than to say that the complainant had told her that the appellant had threatened to kill himself. However, the Magistrate queried whether this was evidence before the crash itself (rather than a report of what was said after it) (T 15).

186. The Magistrate referred to an abundance of evidence pointing to threats being made by the appellant to the complainant. Both of the complainant’s parents’ evidence of the content of the phone call was persuasive and consistent with the complainant’s version. Based upon that ‘overwhelming’ evidence supporting the prosecution case (including the complainant’s evidence), he rejected the appellant’s account. This was not to say that he rejected the appellant’s evidence that he had threatened to kill himself. It was the case that he also threatened to kill the complainant as well (T 15).

187. The Magistrate therefore found, beyond reasonable doubt, that during the phone call, prior to crashing into the tree, multiple threats were made. These included the words “Fuck you, I’m going to kill you. Fuck you it’s all your fault. I’m going to fucking kill you cunt. Look what you’ve made me do. I’m going to fucking kill you. Look at what you made me do. You’re a fucking whore. You’re nothing but a fucking slut. I’m going to fucking kill myself. It’s all your fault. I’m going to get in the car and I’m going to come up and kill you so no one else can have you. Do you fucking hear me you whore. I’m going to fucking kill myself.” The offence for sequence 8 was also made out (T 15).

The appellant’s submissions

188. The appellant gave an account about his state of mind, but this rose no higher than evidence to kill himself; not the complainant.

189. The appellant referred to what the complainant and Mrs Clark said to Karyn Murphy at the meeting on 17 April 2019; that there was no more than emotional abuse and no specific incidents of physical abuse that had been identified (albeit that the complainant had complained about bruising).

190. The appellant noted that there was no contemporaneous record of the telephone call.

191. The appellant referred to contemporaneous representations on the day of the incident, being to Jackie Louder (at 2:24pm) (Exhibit 21, at [22]) and Savannah Syred (Exhibit 18 at [23]). Neither of them referred to the appellant threatening to kill the complainant. In the first of these, as previously noted, the complainant asked Jacqui Louder “Please call this number it’s what Curtis is using and he’s saying he’s going to kill himself”. In the second of these, the complainant wrote that Curtis said he was going to throw away all her stuff. … a phone call in which the complainant said that Curtis was going to try and kill himself.

192. The first time the complainant, Mrs Clark and David Clark said anything about the appellant threatening to kill the complainant was in their respective witness statements, being in November 2021 and January 2022. None of them complained (to police) beforehand. The complainant had also subsequently spoken to her parents.

193. Counsel for the appellant submitted that it was not, however, his client’s argument that the complainant, with her parents, had fabricated evidence about the threat. It more a case of mistake: they thought that he was directing a threat against her when in fact it was a threat against himself.

194. Counsel for the appellant challenged the credibility of Renae and David Clark. It was observed that according to their evidence, the complainant’s parents had learnt of an episode of violence (the Sylvania incident) on 28 October 2018, but strangely, they acquiesced to the complainant travelling to Lake Conjola for Christmas, with her younger sister, TC, in tow.

195. In reply to a submission that the Crown made concerning evidence of earlier threats that the appellant had made to kill himself, Counsel for the appellant accepted that those threats were made, but drew a contrast that there had hitherto been no expressed threats to kill the complainant.

196. Further, although the Magistrate had made a composite finding of threats to kill the complainant that the appellant had made on the phone, because of the way that the prosecutor had opened, what was material was whether, at the point right before the impact of his travelling motor vehicle against the tree, he had expressed the threat to kill the complainant. Moreover, it was at that particular point when the Court had to focus on the element of whether, by making the threat, he had an intention of causing the complainant (who was present in Sydney) to fear physical or mental harm.

197. There was reasonable doubt about sequence 8.

Consideration

198. When considering the two earlier charges, I commonly observed that the nature of the relationship was an important contextual circumstance.

199. That observation applies also to this charge, although for this charge, the context was slightly different. It was common ground that the relationship had broken up. In my view, it was likely that it was the complainant who broke it up. As I have indicated, there was much evidence indicating that the appellant did not want her to leave him or, put another way, he was possessive of her.

200. Thus, it is consistent with the probabilities that the appellant, who was likely in a negative mental state anyway after criticism of his playing form and was looking for solace, would demand that, notwithstanding the recent relationship break-up, the complainant drop everything to travel to Melbourne (regardless of whatever other commitments she had in Sydney) and would say to her, as Renae Clark said she heard him say, that “no other thirsty fuck is ever going to have you”.

201. The appellant necessarily accepts that the complainant and both of her parents gave credible and reliable evidence about the appellant threatening to kill himself in his call to the complainant. He could hardly do otherwise given his subsequent crash and other evidence (including the messages to Jacqui Louder reporting upon the appellant’s threat to himself).

202. One of the real issues associated with this charge is whether he also threatened to kill her. I am satisfied beyond reasonable doubt that he did. Both the complainant and her mother, although otherwise giving evidence that was different certain respects, commonly gave evidence that the appellant had told her “This is your fault”. This was, in my view, another manifestation of emotional abuse which had characterised his relationship with the complainant. His impulse in blaming the complainant had been seen in the context of the Christmas Day text she received, unsolicited, from a third party; it was seen at Sylvania in the early hours of 28 October when she was blamed for being critical of his being intoxicated and not cuddling him; it was seen at Lake Conjola on 28 October when the complainant invited her sister into their bed. She was to blame also because of the profile she had developed through her Instagram activities. I do not suggest that these examples are exhaustive.

203. I take into account the circumstance of his taking the box containing the complainant’s clothes. When he gave evidence, he did not address Savannah Syred’s evidence about his taking that box (or boxes) to his car and thereby appropriating the complainant’s property or the complainant’s evidence of his indication that he would throw the box over a bridge. Was he intending to dispose of them? He did not say. I infer that he was in a vengeful mood towards the complainant, thus fortifying my earlier acceptance of the evidence of both the complainant and Renae Clark about his general predicament being her fault. I accept Renae Clark’s evidence that the appellant explained that a reason for killing the complainant was so that “no one else could have” her.

204. I take into account the strong evidence of the complainant and her parents about quite voluminous threats to killing her within a long telephone conversation.

205. I place minimal weight upon the absence of a contemporaneous note. The death threats to the complainant were so numerous and, to the ears of the complainant’s parents, so vivid, as to make it inherently unlikely that they would forget that the appellant had made them. As explained earlier in these reasons, if, at that point, they were prepared to make a complaint to police, then there might be greater force to the argument that it was likely that they might make a note. But none of the complainant, Renae or David Clark had that mindset. They were not bent, as investigators might have been, upon assembling evidence against the appellant. Considerately, they were concerned about the appellant’s mental wellbeing whilst trying to ensure that he kept away from the complainant.

206. I also reject what I regard, frankly, as a somewhat snide attack upon Renae and David Clark for acquiescing to a situation of enabling the appellant to access not only the complainant but also TC, on their evidence, after learning of violence perpetrated against the complainant. I agree with the Crown’s submissions (at hearing) in response to that argument.

207. I have addressed, generally, the appellant’s point about the absence of disclosure of the death threat to herself, to Karyn Murphy. I reiterate that in the context in which that meeting occurred, it was not inherently surprising that the complainant (or Renae Clark) would omit to refer the death threat to Ms Murphy. It is also unsurprising that she would not mention it to Ms Syred. The complainant was preoccupied with getting the appellant’s friends (and if necessary, their partners) to help the appellant when she was not in any practical position to do so, beyond providing counselling over the telephone.

208. I have considered the appellant’s evidence and have noted his concession about his making threats against himself which, as I have indicated, he had realistically little forensic choice but to make. However, the appellant was in an emotionally fraught state of mind and in that state, I do not accept that the extent of his recollections of what he said was reliable.

209. As to the appellant’s Counsel point concerning how the prosecutor ran the case in the Local Court, I am also satisfied that at a point close to when he crashed into the tree, he did say “I’m going to fucking kill you, Cunt”. This was the evidence of each of the complainant and Renae Clark. Because of other differences in their accounts, I do not find that the complainant and Renae Clark collaborated together in preparing their evidence: this evidence reflected their own independent recollections.

210. Viewed objectively, this finding might appear counter-intuitive because of its being illogical: the complainant was in Sydney and he was in Melbourne. More to the point, he was just about to steer his motor vehicle into a tree. How could he utter a threat about killing the complainant at about the point where his vehicle was about to drive into a tree, when he patently could not deliver on it?

198. Such reasoning assumes, however, that at all times during that fateful drive, the appellant was intending to carry out a threat only to kill himself. I do not make that assumption. As the Crown stated, many times in the evidence, the appellant threatened to kill himself, even over innocuous things; but he had not hitherto tried to do so. It was no less illogical to an objective observer than the reasoning underpinning the appellant’s demand that she instantly fly to Melbourne. Indeed, the expression of such demand, was inconsistent with the notion that at all times in the call, it was inevitable that he would make an attempt on his life.

199. The appellant was plainly emotionally over wrought. I find that he had made many threats to kill the complainant during the conversation. It is conceivable that making the threat as he did, about the complainant, as he was on the verge of veering off the road, was consistent with, sadly, a jealous and self-pitying man, and who was vengeful towards her; and that, consistently with other threats that he had made to himself, for which he wanted the complainant to feel guilty about, on this particular occasion, but through a final act of elevated emotional abuse, he made the death threat to the complainant. I find it probative Renae Clark’s evidence that after hearing the crash, she heard the appellant blaming the complainant.

200. I am satisfied beyond reasonable doubt that the appellant threatened to kill the complainant during the call.

201. Did the threat amount to ‘intimidation’ within the meaning of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)? As indicated earlier in these reasons, that required proof beyond reasonable doubt that the conduct causes in the complainant a reasonable apprehension of injury to her. This strikes me as amounting to a partly objective test; that she did apprehend injury to herself and that such belief was reasonably based.

202. It may be accepted that the death threat to her would not have caused in the complainant an apprehension of the infliction of imminent injury upon her. Of course, she, at that point, was situated in a different State to the appellant. But there is no reason, in my view, for reading down the element in s 7(1)(c) in that way.

203. I take into account that hitherto, the complainant had heard multiple threats through the same conversation from the appellant to kill himself; which he had not (to that point) carried through with. On earlier occasions preceding this incident, her response was to try to support him, as best as she could, by words or conduct (such as cuddling him) when she was in his presence. But on 31 March 2019, she was not in his presence and there was little she could do other than to speak with him and try, as she did, to contact the appellant’s friends in Melbourne to get them to try to help the appellant.

204. Nevertheless, the complainant had a tendency (which was creditable to her) of taking the appellant at his word. I find that she did apprehend that he might injure her. She never appeared to diminish the threats he had made to her that were directed to himself. But she was in no position to predict, one way or the other, whether he would carry out the threat he made to kill himself in such a way that would preclude the possibility of his implementing the threat against her. Around the time of the ‘Uber incident’, she had seen him driving erratically behind her, but did not end up trying to harm himself. For that matter, and expressing the matter as sensitively as I can, she could not predict that even if he did implement the threat to kill himself, (a) his attempt would succeed; and (b) if he survived any actual attempt on his life, he would not later come for her.

205. Relevant also is that this was the first time a death threat had been made to her; in a context where she had broken up with him. I consider that a person in her position would have felt that because of on-going jealousy and resentment to her, manifested in the explanation he gave her as to why he was going to kill her, a reasonable person in her position would have felt that the appellant was unable to let go of the relationship and that his threat was genuine.

206. I am satisfied beyond reasonable doubt that the appellant’s conduct caused a reasonable apprehension of violence to the complainant.

207. The third and final element for this offence concerns the complainant’s mental element.

208. The relevant intention here is one to instil (in the complainant) fear (of physical or mental harm) from the threat. It is not an intent to implement that threat. Thus, the circumstance that the appellant threatened to kill the complainant in close temporal proximity to the appellant’s act of driving into the tree provides no answer to this particular element.

209. The appellant would have known that the complainant had treated seriously his multiple threats to kill himself. He would have known that she feared for his safety; be it his physical or mental health. In his state of mind, that was part of the point in making threats to himself and, in my view, a feature of emotional abuse towards her. A question arises whether or not he knew that she would likely treat seriously (in the sense of ‘fearing’) any threat to kill her and react to that.

210. As I have indicated, intention can be proven by inference. Further, a person’s acts may themselves provide the most convincing evidence of their intention. Where a specific result is the obvious and inevitable consequence of a person’s act, and where the person deliberately does that act, it may readily be conclude that the person did that act with the intention of achieving that specific result. I am inclined to find that the death threat was deliberate. I also am inclined to infer that the complainant fearing for her physical safety was an obvious and inevitable consequence of that deliberate act.

211. The appellant, who bore no onus on any element for this offence, understandably did not give any evidence of his intention or knowledge when making (what I have found) the death threat to the complainant on the contingency that he was found to have made the death threat to the complainant. Forensically, it would have been awkward, to say the least, for him to have given give such evidence. Nevertheless, it remains the position that, although the prosecution carried the onus (also) of proving the mental element for s 13, as was observed in Weissensteiner v The Queen (1993) 178 CLR 217 at 227-229, and reaffirmed in Baden-Clay at [50]-[51], hypotheses consistent with innocence may cease to be reasonable in the absence of evidence which, if it exists at all, must be within the accused’s knowledge. The appellant gave no evidence to supply a reasonable contrary hypothesis, as to what his mental state (intention or knowledge) was as to what he meant by the threat or his expectation of how the complainant was likely to respond to it. I take this omission into account.

212. I have indicated my view that the appellant was in a vengeful state of mind towards the complainant. Another way of describing it was that his state of mind towards the complainant was punitive. In my opinion, consistently with that characterisation, when uttering the death threat, I am satisfied beyond reasonable doubt that he intended to cause fear in the complainant for her physical or mental harm and, further or alternatively, that he knew that his death threat was likely to cause her fear.

213. I find that the offence for sequence 8 is made out.

Summary and Orders

227. In summary, having formed my own judgment of the facts and determining the appeal on the basis of the evidence that was before the Magistrate, but with the focus directed on the evidence guided by the way in which the appellant had brought this appeal, I have reached the same conclusions as the Magistrate.

228. For the foregoing reasons:

1. The appeal against the conviction for sequence 3 is dismissed and the conviction is affirmed.

2. The appeal against the conviction for sequence 7 is dismissed and the conviction is affirmed.

3. The appeal against the conviction for sequence 8 is dismissed and the conviction is affirmed.

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Endnotes

Decision last updated: 21 July 2023